SQE CLP and Criminal Flashcards
(139 cards)
1
Q
6 principal ways to exclude evidence
A
- Submission of no case to answer
- Application for dismissal
- Exclusion under s.78 PACE
- Exclusion under s.76 PACE
- Exclusion under reserved common law rules in s.82(3) PACE
- Abuse of process application
2
Q
When can an application for dismissal be made?
Who is the application made to?
Can an application be an oral application?
What is the test for dismissal?
A
Timing of application:
1. After D sent to CC by M
2. After evidence put to D by M
3. Before arraignment
Who is app made to?
To the CC judge
Can app be oral?
Yes, but written notice needs to be given if the application is going to be made orally
Test for dismissal:
1. No evidence that D committed the offence OR
2. The prosecution evidence, taken at its highest, is not enough for a properly directed jury to properly convict on
3
Q
Test for no case to answer (I.e. the Galbraith test)
When is Galbraith submission made?
Is the court required to give reasons when rejecting this app?
What is the process in CC?
A
Same as for application for dismissal
- There is no evidence that the offence was committed by D OR
- The prosecution evidence, taken at its highest, is not enough for a properly directed jury to properly convict D
When is it made?
- close of P case
Reasons?
No.
Process CC:
- App will be made in the absence of the jury
- P must have an opportunity to make representations
4
Q
When does the court have the power to stay proceedings for abuse of process?
Examples of where the defence might raise abuse of process?
Can delay count as abuse of process?
A
The court has the power to stay for abuse of proceedings where:
(1) it could not afford D a fair trial
(2) it would jeapordise the integrity of the justice system
Examples:
(1) D tricked or coerced into committing an offence would not normally commit
(2) Prosecution unequivocally promised would not be convicted of this offence
(3) Actions of police have undermined public faith in the criminal justice system - e.g. destroying evidence
(4) the prosecution have misused or manipulated the court so as to deprive D of a protection afforded by law
Delay?
- Yes - if P has deliberately delayed prosecution to gain tactical advantage, this can be an abuse of process
5
Q
Rights under Code C of PACE:
Another example where s.78 could be used:
A
(1) Right to have someone informed of your arrest
(2) Right to consult a solicitor
(3) Right to consult the Code of Practice
(4) Caution to be given on arrest
(5) Caution to be given before any interview
(6) Interview should be conducted at a police station unless an exception applies
(7) Juveniles and vulnerable people should have an AA
Another example:
- Proper ID procedure was not used
6
Q
Wording to use for a submission under s.78 to exclude evidence:
A
[details of the breach of COP and submission] having regard to the circumstances in which this evidence was obtained its admission would have such an adverse effect on the fairness of the trial that the court ought not to admit it.
7
Q
What should you consider when making a submission to exclude evidence under s.78 PACE?
A
Whether the breach was “significant and substantial”
Did the conduct of the police lead to injustice or unfairness?
8
Q
What is factual causation and what is the test?
What is legal causation?
A
Factual causation:
The defendant’s act or omission was in fact the cause of the consequence
Test - ‘but for’ test
Legal causation:
The defendant’s act or omission was the legal cause of the consequence
The law checks culpability and action/omission must be ‘operating and substantial’ cause
9
Q
What is a ‘substantial’ cause of harm when looking at legal causation?
A
It need not be the only or principal cause but it needs to be more than minimal
10
Q
What is required in a case of medical negligence for it to count as a novus actus interveniens?
A
Only if the second cause (medical negligence) is so overwhelming as to make the original wound merely part of the history can it be said that death does not follow from the wound
11
Q
What is required for an act of a third party to count as a novus actus interveniens?
A
There will only be a break in the chain of causation if the actions of the third party are ‘free, deliberate and informed’
12
Q
3 types of ‘acts of the victim’ that can be novus actus interveniens?
What will be required of each for it to be a novus actus intervenien?
A
3 types:
1. Fright or flight
2. Refusing medical treatment
3. Suicide
Fright or flight
1. whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself
2. whether the victim’s reaction was within the range of responses which might be expected from a victim placed in the situation which he was
(e.g. victim stuck in car with someone making unwanted sexual advances, jumps out of car and sustains injuries, if foreseeable that would jump out of car then D is liable)
Refusing medical treatment
- Defendant’s take victim as they find them - if someone refuses a life-saving transfusion on religious grounds, D still liable for death
Suicide
- D still liable where the act was reasonably foreseeable eg where the defendant causes a brilliant pianist to lose her fingers, or a keen sportsman to be paralysed
- May not be if e.g. wounds healed then commit suicide OR voluntary and informed decision of V to act
13
Q
When will natural events break the chain of caustion?
A
A natural event will only break the chain of causation if it is ‘extraordinary and not reasonably foreseeable’
14
Q
General rule on omissions:
A
An omission, without a duty, cannot create an indictable offence
15
Q
5 elements prosecution will need to prove to convict D of offence of omission:
A
- The offence is capable of being committed by omission
- D was under a duty to act
- D breached the duty
- The breach caused the actus reus of the offence to occur
- If applicable, D had the necessary mens rea
16
Q
6 situations where D may be under a duty to act (looking at omissions):
A
- By statute
- Special relationship
- Voluntary assumption of responsibility
- Contract
- D creating a dangerous situation
- Public office
17
Q
Examples of special relationships:
(Looking at liability from omissions arising from duties)
A
- Doctors and patients
- Parents and their children
- Spouses
18
Q
Explanation of the duty someone is under if they create a dangerous situation:
Look at example of a house fire
A
If a person accidently started a fire in a house, the person has a duty to take reasonable steps to counteract the dangerous situation created. The steps need only be reasonable, so a person would not be expected to risk their own life to save the lives of others, but they would be expected to take reasonable steps, such as summoning help, warning any occupants of the house that it is on fire, and so on.
19
Q
What is direct intention?
A
Intention because it is the purpose of D’s act or aim
20
Q
What is oblique intention?
A
Firstly, it is not a substitute for direct intention but evidence that intention exists
Oblique intent is where the consequence is not the defendant’s purpose but rather a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention (the consequence is a virtual certainty of D’s actions)
AND
D appreciated this was the case
21
Q
What is recklessness?
A
Where D does not intend to cause harm but foresees the risk of harm and takes the risk anyway [this is subjective to D]
Taking the risk must also be unjustifiable (e.g. russian roulette never justified, surgeon carrying out risky procedure might be)
22
Q
What is the coincidence of AR and MR principle?
What are the exceptions?
A
As a general rule, the defendant must have the relevant mens rea for the offence at the precise moment when D commits the actus reus. This is known as the requirement for coincidence of actus reus and mens rea
Exceptions:
1. Continuing act theory - D can be liable where AR is continuing and MR formed at some point during
2. Series of acts - where action categorised as series of acts it is enough for D to have MR at some point during the whole action
23
Q
What is the principle of transferred malice?
A
Where D has intention to shoot A but misses and shoots B, find liability for murder through transferred malice EXCEPT:
* D’s MR can only be transferred where it is for the same offence
* No double/general transfer of MR – where man stabs woman to kill her but also stabs foetus which is later born alive but then dies from those injuries, MR can’t be transferred
24
Q
Mistakes that negate mens rea:
A
Could be a mistake of fact: for example if the defendant takes the wrong umbrella away from a restaurant, mistakenly believing it is their umbrella, there will be no liability for theft because D will not be dishonest.
If the mens rea required for the relevant element of the actus reus is intention or recklessness, there is no need for the mistake to be reasonable.
If the mens rea requirement is negligence, then the mistake must be reasonable.
25
Elements to partial defence of loss of control
1. D's action resulted from a loss of self-control
2. The loss of self-control was caused by a qualifying trigger
3. A person of D's age and sex with a normal degree of tolerance and self-resrtaint in the same circumstances might act in the same way/similar way
26
What are the qualifying triggers for loss of self-control?
1. Fear trigger
- if D actually feared violence agains self or another identifiable person AND
- the violence D feared was serious violence
2. Anger trigger
- D loses control because of something said or done
- and what was said or done was of an 'extremely grave character'
- and caused D to have a justifiable sense of being seriously wronged
(can't be incited by D)
27
Elements for diminished responsibility partial defence?
1. D suffers from an abnormality of mental functioning
2. This arises from a recognised medical condition
3. Which causes substantial impairment
4. The abnormality of mental functioning provides an explanation for the killing
28
Elements of involuntary manslaughter - constructive manslaughter?
1. D has intentionally done an act
2. The act is unlawful
3. The act is objectively dangerous [sober and reasonable person would recognise that it subjects the other person to some harm]
4. The act has, in fact and in law, caused the death of the other person
29
Elements of gross negligence manslaughter:
1. D must owe the deceased a duty of care
2. D must have breached that duty
3. The breach involves a serious and obvious risk of death that was reasonably foreseeable
4. The breach caused death
5. The breach can be classed as grossly negligent
30
Elements of a common assault offence:
- D must cause V to apprehend immediate harm in the form of unlawful personal violence
- D must intend or be reckless as to causing V to apprehend unlawful and immediate violence
31
Elements of battery offence:
- D must unlawfully apply force to V
- D must intend or be reckless as to the application of force
NB: Unlawfulness means there was no consent and consent can be express (handshake) or implied (getting on the tube at rush hour)
NB: D has a defence if had a genuine belief of consent even if he was mistaken
32
s.47 offence?
Assault occasioning ABH
33
Elements for a s.47 offence:
1. D must commit assault or battery
2. Must cause V harm that amounts to ABH
34
s.20 offence?
Wounding/inflicting GBH WITHOUT intent
35
Elements of a s.20 offence:
1. D must wound or inflict GBH
2. D must intend SOME harm or be reckless as to causing SOME harm
36
s.18 offence?
Wounding/causing GBH WITH intent
37
Elements of a s.18 offence:
1. D wounds or inflicts GBH
2. D must INTEND to cause GBH or resist lawful arrest
38
s.1 Theft Act offence?
Theft
39
Elements of s.1 theft offence?
1. D appropriates the property
2. Belonging to another
3. Dishonestly
4. With intention to permanently deprive
40
s.8 theft act offence?
Robbery
41
Elements of a s.8 robbery offence?
1. D must commit theft
2. D must use force, or fear of force, on any person
3. Immediately before or at the time of stealing
4. The force must be used in order to steal
5. D must have intended to use force (or fear of force) for the purpose of stealing
42
What is a s.9 theft act offence?
Burglary
43
Elements of a s.9 burglary offence?
Offence can be committed in two separate ways:
s.9(1)(a) - offence committed on entry
s.9(1)(b) - offence committed when commit ulterior offence after entry
1. D must enter a building as a trespasser
(can be part of a building)
2. D must have necessary intention or recklessness as to being a trespasser
3. s.9(1)(a) - D must intend to commit ulterior offence on entry [theft, inflict GBH, criminal damage]
4. s.9(1)(b) - D must commit an ulterior offence [steal/attempt to steal or inflict/attempt to inflict GBH]
44
What is a s.10 theft act offence?
Aggravated burglary
45
Elements of a s.10 aggravated burglary offence?
1. D must commit burglary
2. D must have with him at the time of the burglary an aggravating article
(for (a) at time of entry and (b) when UO committed)
- does not need to be on his person could be readily accessible and still count
3. The article is a firearm, explosive, weapon of offense or imitation firearm
46
3 fraud offences:
1. fraud by false representation
2. fraud by abuse of position
3. fraud by failing to disclose
47
Elements for fraud by false representation:
1. D made a representation
2. The representation was false
3. D knew the representation is/might be false
4. D is dishonest in making the representation
5. D intended to make a gain or cause a loss as a result of the representation
48
Elements of fraud by failure to disclose:
1. D must fail to disclose information
2. D must be under a duty to disclose
3. D must have been dishonest in their failure to disclose
4. D must have intended to make a gain or cause a loss as a result of failure to disclose
49
Elements of fraud by abuse of position:
1. D must occupy a position
2. The position is one that requires D to safeguard, or not act against, the interests of another
3. D must abuse position
4. D must act dishonestly in abusing position
5. D must intend to make a gain or cause a loss as a result of abuse of position
50
Elements of simple criminal damage:
1. D causes damage or destruction to property
2. Property belongs to another
3. D does so without lawful reason or excuse
4. D has the necessary intent or recklessness as to causing damage or destruction
NB: by fire if the charge is basic arson but same elements otherwise
51
Elements of aggravated criminal damage:
1. D damages or destroys property
2. Belonging to another
3. D intends or is reckless as to causing damage or destruction
4. D intends or is reckless as to the endangerment of life by damage or destruction
NB: endangerment of life needs to arise from the damage done to property not the means by which it is damaged
52
Who is an innocent agent?
person commits AR for offence on instruction of another individual but cannot be found liable for some reason
potentially because lacks MR or mental capacity
53
Requirements to establish accessorial liability:
1. Principal offender must commit principal offence
2. D must aid, abet, counsel or procure the commission of the principal offence
3. D must have knowledge of the essential matters of the principal offence
4. D must intend to assist or encourage and for the principal offence to be committed
54
What does aid, abet, counsel and procure mean?
What about if help after offence committed?
Aid - assist, support or help person PO commit offence
- Providing weapon, acting as look out
Abet - incite, instigate or otherwise encourage him to commit an offence
- Shouting words of encouragement or cheering or applauding during event
Counsel - advise or solicit him on how to commit offence
- Hiring hitman to carry out a murder
Procure - D has caused, in some way, offence to come about
- Lacing PO’s drink, knowing he will drive home intoxicated as a result (an offence)
- Directing wife to have sex with someone else knowing she does not consent
Timing:
- Not an accessory if assist after the offence has been committed
55
Relevance of causation in accessorial liability
No requirement of causation of the PO but must be some connecting link between D's actions and PO
56
What does knowledge of the essential matters mean when dealing with accessorial liability?
It means that the Defendant knows the essential matters that make up the offence -- type and range of offences that might be committed, at minimum
57
Defences to accessorial liability:
1. Withdrawal
- D not required to take ALL reasonable steps to withdraw but must be a substantial basis to evidence withdrawal
2. Overwhelming supervening event
- ‘nobody in D’s shoes could have contemplated might happen and is of such manner as to regulate D’s acts history’
58
What is the position on transferred malice in relation to accessorial liability?
If PO and A decide on a victim and PO commits an offence against a different victim, A will not be responsible
59
What is an inchoate offence?
Offence has not been completed but steps have been taken to complete it
I.e. possesses MR but lacks full AR
60
Elements of an inchoate/attempted offence:
1. D commits an act
2. The act is more than merely preparatory
3. D has the intent to commit the full offence
[4. Absence of a defence]
61
What does more than merely preparatory mean in relation to accessorial liability? /Examples
o Examples:
* Being outside a post office with a threatening note and a fake gun not attempted robbery
* Being in school toilets with a knife and rope but no schoolchildren not attempted false imprisonment
* Getting into a car with a loaded gun and pointing it at the victim attempted murder
* Looking at a padlock with cutting equipment in the hedge attempted burglary
62
How stringent is the test for MR for an attempted offence?
Intention must be intention to commit the complete offence EVEN where that offence is capable of being committed recklessly or with intention to lesser AR
E.G: Intention to cause GBH is sufficient for murder but is not sufficient for attempted murder - must be intention to murder
UNLESS the offence contains a MR element not related to the AR e.g. in aggravated criminal damage [endangering life] - here it can be intent or recklessness
63
Defences to inchoate/attempted offences:
Impossibility
1. In fact - e.g. D goes into V's room and stabs intending to kill but V already dead
2. Actions insufficient - D attempts to poison V by putting poison in coffee but turns out the "poison" is harmless
3. By law - D thinks its actions are illegal but actually legal
64
D's 3 options to plead when charged:
1. Guilty
2. NG with no involvement
3. NG with a defence
65
3 things need to consider with intoxication defence:
* Whether D was voluntarily or involuntarily intoxicated
* Whether offence is basic intent or specific intent
* Whether substance is considered as dangerous or not
66
What is a "specific" intent offence?
Intention is the only form of MR available
67
When will the court ask whether a D formed mens rea even when intoxicated?
The court will ask whether the defendant did form the mens rea even though intoxicated, in cases of:
* Involuntary intoxication (such as being drugged without consent);
* Voluntary intoxication by non-dangerous drugs (eg Hardie, the D who took Valium to calm his nerves); or
* Voluntary intoxication and D has committed a specific intent crime (eg murder).
68
What are the magistrates courts' sentencing powers?
6 months for any single offence
12 months for 2 either-way offences (2x 6-month sentences to be served consecutively)
69
Who make up the bench when CC is acting as appeal court?
1 CC judge and 2 lay mags
They have equal decision making power
70
Can the CoA sentence more harshly than the CC?
No - it can substitute the sentence for something on par or less
EXCEPT where the case before it is a reference from the AG for an unduly lenient sentence
71
What can CoA do on a conviction appeal?
Court of Appeal can dismiss the appeal or reverse the ruling of the trial judge and remit the matter back to the Crown Court
72
Powers of CofA on determining a reference from Criminal Cases Review Commission:
Court of Appeal can dismiss the reference or quash the conviction. On application by the prosecution, can order a retrial.
73
What counts as a low value shoplifting offence?
What type of offence is this?
Theft under £200
Summary only offence
74
Can a suspect be taken to any police station?
Yes, unless detention is expected to be more than 6 hours then should be a designated police station
75
Responsibilities/requirements of the custody officer:
- Looks after the handling and welfare of suspects in detention
- Must be of at least a sergeant rank
- Must be unrelated to the investigation of the suspect
- Must release if become aware that grounds to detain no longer exist
76
What should the custody officer establish before authorising detention?
That there is sufficient evidence to proceed to charge detainee OR reasonable grounds for believing detention necessary to:
- secure or preserve evidence, or
- obtain such evidence by questioning
77
When does detention at the police station need to be reviewed?
Does the reviewing officer need to say anything to the suspect?
- Not more than 6 hours after detention first authorised
- Every 9 hours thereafter
Officer needs to remind the suspect of their right to free legal advice and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.
78
How long can a suspect be held in custody without being charged?
Can this be extended? How? For how long?
24 hours from time of arrival at police station
First extension:
Can be extended for further 12 hours BUT:
* superintendent must authorise
* superintendent must have reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning
* indictable offence
* investigation must be being conducted diligently and expeditiously
Second extension:
* Must apply to court for further extension of up to 36 hours
* Same criteria as above subbing M court for superintendent
79
When must a person be told of their right to legal advice?
Immediately before:
* The commencement or recommencement of an interview
* Being asked to provide an intimate sample
* An intimate drug search
* An identification parade or video identification procedure
80
Can the right to receive legal advice be delayed?
Yes, up to 36 hours but MUST be justified and recorded and suspect must be informed
Criteria:
* Indictable offence
* Superintendent
* Reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
- Interference with/harm to evidence connected with an indictable offence;
- Interference with/harm to others;
- Alerting of other people suspected of committing an indictable offence but not yet arrested for it; and/or
- Hinder the recovery of property obtained in consequence of the commission of such an offence.
81
Can the right to have someone informed of arrest be delayed?
Yes, by up to 36 hours
Criteria:
* The person must be in detention for an indictable offence (an offence that may be tried in the Crown Court ie indictable only and either way offences); and
* The authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of inspector; and
* The inspector has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
- Interference with/harm to evidence connected with an indictable offence;
- Interference with/harm to others;
- Alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
- Hinder the recovery of property obtained in consequence of the commission of such an offence.
82
What is the role of an appropriate adult?
* Ensure that the detained person understands what is happening and why;
* Support, advise and assist the detained person;
* Observe whether the police are acting properly and fairly and to intervene if they are not;
* Assist with communication between the detained person and the police; and
* Ensure that the detained person understands their rights and that those rights are protected and respected.
83
Can an appropriate adult request a solicitor for the suspect?
Yes, but the suspect does not have the see the solicitor
84
What is a solicitor entitled to on arrival at police station?
The custody record and
‘… solicitor must be given sufficient information to enable them to understand the nature of any such offence and why they [the client] are suspected of committing it.’
85
Can someone be interviewed if they're drunk?
If they cannot appreciate the significance of the questions asked the generally no
BUT can be authorised in any event by an officer of superintendent level
86
What counts as oppression for s.76(2) PACE?
Oppression is ‘torture, inhuman or degrading treatment, or the use or threat of violence’ (s 76(8)).
The oppression must have CAUSED the confession
87
Does the existence of oppression or unreliability AUTOMATICALLY exclude the evidence under a s.76 application?
No
The existence of either oppression or unreliability does not automatically exclude such evidence, instead the court must grant the defence’s application.
But if the court finds there to be oppression or unreliability it MUST exclude the evidence
88
Who is a 'vulnerable eprson' at police station?
(a) May have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
- Their arrest and detention; or (as the case may be)
- Their voluntary attendance at a police station; or their presence elsewhere…for the purpose of a voluntary interview; and
- The exercise of their rights and entitlements.
(b) Does not appear to understand the significance of what they are told, of questions they are asked or of their replies;
(c) Appears to be particularly prone to:
- Becoming confused and unclear about their position;
- Providing unreliable, misleading, or incriminating information without knowing or wishing to do so;
- Accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
- Readily agreeing to suggestions or proposals without any protest or question’.
89
When might the court be reluctant to draw adverse inferences even where entitled to?
Where P did not provide the defence with enough disclosure
90
2 possible consequences of waiting until trial to put forward a defence:
1. Adverse inferences
2. D losing credibility
91
What is an 'adverse inference'?
A common sense conclusion that is adverse to the party in proceedings
E.g. drawing an adverse conclusion where there is missing information as opposed to a positive conclusion
92
What are 3 specific adverse inferences that can be drawn + section numbers?
Are there any safeguards?
Criminal Justice and Public Order Act:
- s.34 - failure to mention something in interview that later rely on at trial [suspect must be cautioned in order to draw adverse inference]
- s.36 - failure to account for object, mark or substance [requires special warning to be given]
- s.37 - failure to account for presence at the scene of a crime [requires special warning to be given]
Safeguard:
- s.38 - no defendant may be convicted solely on the basis of an adverse inference
- mentioning something in interview is qualified by reasonableness
93
Which PACE COP deals with safeguards on visual ID evidence?
D
94
Formalities for the video ID procedure:
D must be told:
- The purpose of the procedure
- Their entitlement to free legal advice
- The procedures for holding it, including their right to have a solicitor or friend present;
- That they do not have to consent to or co-operate in the procedure;
- That if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements.
Video ID must be recorded and recording must show:
- - All persons present within the sight or hearing of the eye-witness whilst the images are being viewed;
- What the eye-witness says; and
- What is said to the eye-witness by the identification officer and by any other person present.
95
What can D do if there has been a breach of PACE COP D (ID evidence)?
What does court need to be satisfied of?
Can apply to exclude evidence under s.78 PACE
This is discretionary and court will assess whether it causes SIGNIFICANT prejudice to D
96
Where is the presumption of bail found in legislation?
s.4 Bail Act 1976
97
Where is the test/grounds for removing bail found in the legislation?
What are the grounds?
Safeguard?
The Bail Act Schedule 1, Para 2
Test: whether there are 'substantial grounds' for believing that
(grounds)
1. D would abscond/fail to surrender
2. D would commit further offences on bail
3. D would interfere with witnesses or otherwise obstruct the course of justice (e.g. tamper with evidence)
ADDITIONAL SAFEGUARD
Bail should NOT be removed if there is 'no real prospect' of D receiving a custodial sentence
98
What threshold do the prosecution need to meet to make out a ground for refusing bail?
'Substantial reason to believe' - relatively low threshold - don't need evidence D will do this
BUT necessary to show these fears have substance and merit
99
What are the three less common grounds for refusing bail?
(a) A remand in custody would be for the defendant’s own protection;
(b) The court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or (c) The defendant is already serving a sentence in custody.
100
What factors do the court need to take into consideration when deciding whether to remove bail?
(a) The nature and seriousness of the offence and the likely disposal (ie sentence)- if convicted of a serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond
(b) The character of the defendant, D’s antecedents, associations and community ties; - Antecedents refers to previous convictions which can make a custodial sentence more likely.
- Character might include any personal circumstances such as drug addictions.
- Associations might include friends with criminal records.
- Examining the ‘community ties’ helps to see how easy it could be for the defendant to abscond and how much D has to lose by absconding. If D is married with children or in a job, then D might be less likely to ‘disappear’ compared to someone of ‘no fixed abode’.
(c) The defendant’s bail record in the past- whether D has absconded in the past can be seen as indicative that D may do so again. Here, the court will also look at whether D has a tendency to commit offences on bail.
(d) The strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction.
101
What must the court consider when deciding whether to attach a condition to bail?
Whether it is relevant, proportionate and enforceable
102
Common bail conditions:
- Residency
- Reporting to police station
- Curfew
- Surety
- Restriction from going to places
- Restriction on contact with people
- Security
- Electronic monitoring
- Bail hostel
- Surrender of passport
103
Can police arrest someone who is not yet in breach of bail but who is about to be?
Yes, if someone is under curfew of 8pm in London and is found in Sheffield at 7pm then can be arrested
104
Bail proccess:
First attempt in M court:
- Prosecution will outline objections (if it has any)
- D will make submissions
- if there is a right to bail court will announce decision with reasons
Second attempt in M court
- a week later
Third attempt in CC
- ‘certificate of full argument’ must be obtained from the M court
- notice served that intend to appeal to CC
- heard one business day after service of notice
D can only apply AGAIN if there has been a change in circumstances
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Process for prosecution to appeal the grant of bail:
(Only happens very rarely)
(a) Prosecution must have opposed bail originally
(b) Offence must be punishable by imprisonment
(c) Prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)
(d) Intention to appeal is confirmed in writing and served on the court and defence within two hours
(e) Appeal is heard within 48 hours - excluding weekends
(f) Appeal is heard by a Crown Court Judge
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What are the custody time limits for M court and CC?
What must P show for court to sanction an extension?
M court - 56 days
CC - 182 days
Unless court has sanctioned an extension
P must show:
- conducted investigation with all due diligence and expeditiously AND
- there is 'good and sufficient cause' to have D further remanded in custody
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When must first remand take place in M court?
And after this how long?
(there is no remand in CC)
Within 8 days (so D can make another bail app if so wishes)
Then, every 28 days
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When should the timing of the first hearing in M be and in CC?
14 days if anticipate a guilty plea
28 days if anticipate a NG plea or if case likely to be sent to CC for EITHER trial or sentence
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When must prosecution serve initial details of prosecution case (IDPC)?
Consequences of failure?
As soon as practicable and no later than beginning of day of first hearing
Consequences
- adjourn first hearing
- costs to D
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What is 'plea before venue'?
In an EW offence, it is where D indicates whether G or NG (or no indication) at the FIRST HEARING in M
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Note:
For a guilty plea to be valid it must be unequivocal
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When should M court order a pre-sentence report for CC?
Where:
* There is a realistic alternative to a custodial sentence; or
* The defendant may be a dangerous offender; or
* There is some other appropriate reason for doing so.
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Where is the allocation procedure location in legislation?
s.19 Magistrates' court act 1980
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What must the court take into account when deciding on allocation of EW offences?
Court must take into account the allocation guidelines which say that the court should try offences summarily unless:
- sentence would CLEARLY BE IN EXCESS of the court's sentencing powers (taking into account mitigating and aggravating factors) OR
- there is some other issue of factual, procedural or legal complexity
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What are the 'special case' EW offences that have special rules re allocation?
1. Low value shoplifting
- £200 or less
- tried SUMMARILY
2. Criminal damage
- over £5000
- by arson
- MUST be in CC
3. Complex fraud or cases involving children as witnesses
- MUST got to CC IF notice has been given under CDA
Complex fraud
- significantly international
- public importance
- over £500,000
- specialised knowledge of financial, commercial, fiscal or regulatory matters
- numerous victims
- substantial and significant fraud on public body
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During an investigation what material must be kept and recorded?
For how long?
All material which may be relevant to the investigation
Retain until at least a decision is taken as to whether to institute proceedings against suspect
Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.
On conviction - date released
or where no custodial sentence - 6 months
On appeal - until appeal concluded
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What material must the prosecution disclose to the defence?
Unused material that might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused
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When will PTPH take place after case sent to CC for trial?
Generally 28 days after sending
NB: The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing
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What is the defence statement?
A document setting out the nature of the accused's defence
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What needs to be included on defence statement?
1. Details of nature of defence
2. Facts on which take issue with the prosecution
3. Reasons for taking issue
4. Facts on which intend to rely to support defence
5. Issues of law intend to raise (e.g. exclude evidence, abuse of process)
IF USE ALIBI
1. Details of alibi witness - name, address, DOB
2. Any information D possesses that might help to locate the witness
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Time limits for serving defence statement:
- M court - 10 business days from the prosecution complying with initial disclosure
- CC - 28 days from the prosecution complying with initial disclosure
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Consequence of failure to serve defence statement/service out of time/service of deficient DS?
- Adverse inferences
- Can't make a request for specific disclosure under s.8 CPIA
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When can a defendant make an application for specific disclosure?
When can this be made?
What needs to be included in app?
Where it has reasonable cause to believe the prosecution has material that should have been disclosed but was not
Made:
- After D served defence statement
- After P has served any further disclosure in response OR said no further disclosure to be made
Included:
- Why D thinks P has info
- Why D thinks it is material that should be disclosed
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What could the result of prosecution failure to disclose be?
- D can apply for a stay of proceedings
- P could be subject to a wasted costs order
- Ds conviction may be quashed on appeal for being unsafe
- Evidence may be excluded due to unfairness
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Can P resist disclosure on public interest grounds?
Yes BUT need to apply to judge for non-disclosure on grounds of public interest
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What happens at the first hearing in the Mags?
Court will give directions for:
- Service of documents between parties
- Sometimes resolve matters of law then and there (rarely) or set a date on which this will be done
- Set a trial date
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When can you make an application to vary a pre-trial ruling made in the mags?
If there has been a material change of circumstance OR
If there is information that was not put before the court when they made the ruling
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How is the prosecution evidence served on the defence in CC trial?
When must this be done in CC?
Evidence is uploaded on to the Crown Court Digital Case System: ie copies of the documents containing the evidence on which a charge is based.
When
- 50 days (if the defendant is in custody); or
- 70 days (if the defendant is on bail) of the date on which the defendant has been sent for trial in the Crown Court.
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Test for either the defence or the prosecution to seek a witness summons:
[Hint: mat...]
* The witness is likely to be able to give evidence that is likely to be MATERIAL evidence (or to produce a material document); and
* It is in the interests of justice to issue a summons
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When might D be able to change plea from G to NG?
- P does not have evidence of an essential ingredient of offence
- D was improperly placed under pressure to plead guilty and/or was materially misadvised by D's legal team
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Basic test for whether evidence is admissible:
Whether it is relevant to a fact in issue
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What is special about self-defence and the burden of proof?
Generally there is no burden on the defence to use evidence to prove anything but if D wants to rely on self-defence must raise 'some' evidence to 'pass the judge' that D acted in self-defence
Then the burden is on P to disprove self-defence
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2 broad issues to consider when looking at hearsay?
1. Does the evidence fall within the definition of hearsay? (if yes then it is prima facie inadmissible)
2. Does one of the exclusionary rules apply?
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If the hearsay statement does not fall within one of the exclusionary categories, could it still be admitted?
Yes, the court has a discretion to admit hearsay evidence if it would be in the interests of justice to do so
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3 step test for determining whether a statement is hearsay?
Where does it come from?
1. Look at what fact in issue the statement is seeking to prove
2. Ask whether there is a statement of that matter in the communication
3. Was it the purpose of the maker of the statement that the recipient, or any other person, would believe it or act on it as true
The test comes from R v Twist
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What is NOT hearsay?
Private diary
CCTV
Questions
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On what 3 occasions may hearsay evidence be admissible?
1. If the witness is unavailable
2. If the hearsay is a business document (although court may exclude if it doubts the reliability)
3. If it is in the interests of justice to admit it
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What must a party show to admit hearsay evidence based on the exclusionary ground that the witness is not available?
1. That were the witness available the evidence would be admissible
2. The witness is identified to the court's satisfaction
3. One of the conditions prescribed is made out
Conditions - witness is unavailable because of:
1. Death
2. Unfitness to be a witness
3. Out of the UK and disproportionate to require to attend
4. Cannot be located after reasonable searches
5. Fear
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