Flashcards in Tests Deck (127):
1
Defence Funding
From CDS where:
- Interests of Justice Test AND
- Means Test
2
Longer Remand by MC
Where: D has previously been remanded in custody for the matter which is before the court AND
D is before the court AND
Both P and D have been allowed to make representations AND
a date has been fixed for the next hearing and that hearing is expected to be effective
3
D remand w/o being present
Where:
- D has consented to this at a previous hearing
- D has a legal representative acting for him
- D has not been remanded in absence on more than 2 consecutive occasions prior to the current one
- D has not withdrawn his earlier consent
4
Presumption in favour of bail non-application
Where:
- D being arrested/charged
- When a warrant for arrest issued
- After conviction
- When chraged with an indictable and D was on bail at time
- When charged with homicide OR serious sex offence AND D has previous conviction for these (required to refuse bail except HHJ can in exceptional circs AND, for murder, must be no significant risk that D will harm someone else)
5
Adjournment vs Remand
Adjournment - no date, not an offence not to attend
Remand - Must set a date, offence not to attend
6
Grounds for refusing bail (non-imprisonable case)
- D should be kept in custody for own protection (welfare if child)
- Already serving time
- Granted bail but absconded or breached condictions AND SGTB that he will FTS/IwW/CFO)
- Previously failed to surrender AND court believes he will again
7
Grounds for refusing bail (summary offence)
as for non-imprisonable (own protection/already serving/BorA w. SGTB) +
- Tested positive for Class A drugs + offence OR refused
- Insufficient information to make informed decision
- D on bail at time of offence AND SGTB would commit an offence if released
- substantial grounds for believing D will commit an offence by causing physical or mental injury to another (or cause fear of)
8
Grounds for refusing bail (Indictable)
- SGTB: FTS / IWW / CFO
- D was on bail at time of offence
- PSR needed and only possible if D in custody
- Class A +ve AND charged with drug/drug-motivated offence OR D refused assessment/help
- Insufficient information
- Own protection/welfare
- Already serving
- Granted bail and arrested for absconding or breaking bail conditions
9
Bail Conditions
Surety
Security
Reporting
Tagging
Curfew
Exclusion zone
Non-contact
10
P challenge MC bail granted
P can 'appeal' to CC where:
- D charged with imprisonable offence AND
- P brought by CPS AND
- P object to bail at time granted
P can ask for MC 'reconsideration' where;
- offence is indictable AND
- some information was not available to MC originally
11
D challenge MC bail denied
D can make 2 bail apps using the same arguments
For subsequent must show 'New Considerations'
MC must issue certificate stating heard full argument (on 1st or 2nd), after which D can appeal to CC
Can appeal conditions to CC only after applying to MC to vary them
12
Dealing with D after fails to surrender
Burden on D to prove reasonable excuse on BoP
Options:
- try in absence
- punish for failure to surrender (custody 3/12 months MC/CC or max fine, can commit also)
- remand in custody or release w. more onerous
- forfeit security or order D's surety to forfeit their recognizance
13
Arrest for breach of Bail Conditions
Where RGTB D has or is about to break his bail conditions OR fail to surrender
OR
Where D's surety has warned police that D unlikely to surrender and wishes to stop standing surety
MC test:
Stage 1: has broken, about to break, likely not to surrender
Stage 2: Remand/commit/rebail on same/other conditions
14
Factors for consideration re. electing CC trial
More expensive
More formal
Longer to wait
Greater sentencing powers (although commitable anyway)
Appeals more complex
Costs implications
BUT
Clean separation of tribunals of law and fact
Lower conviction rate
Legally trained judge
15
Send multiple charges
E/W or summary must be sent where:
- D is sent for an indictable only AND
- also charged at same time with "related" E/W OR summary punishable with disqualification or imprisonment
May be sent where appears on subsequent occasion.
16
Specified summary offences sent at same time as I-only
Common assault
Criminal damage under £5k
Taking a motor w/o consent
Driving whilst dq'd
17
D already sent to CC for I-only, when P can add specified summary to indictment w/o MC
Disclosed by evidence on which D was sent for trial on indictment AND either:
- founded on same facts OR
- formed a series of offences of the same or similar character as the I-only offence
18
Sending Adult Co-D
Where D1 charged w. I-only AND jointly charged with D2 for a related E/W, must send both up for the E/W
Plus MC Must send D2 with any 'related' charge as if charged with an I-only himself (i.e. E/W or summary imprisonable/disqual)
19
Sending Adult and Youth Co-D
Where YD jointly charged with Adult OR charged with a related offence
AND Adult offence sent to CC
YD MAY be sent if 'necessary in the interests of justice' (along with any other charge like I-only)
20
P duty of disclosure
Must disclose:
- all evidence/WS on which P relies
-anything which could be reasonably considered capable of undermining the P case against D ...
- ... or assisting D's case
UNLESS disclosure would not be in the public interest
21
Public Interest Immunity
Court permission where:
1. Any real "risk of serious prejudice to an important public interest"
2. D's interests can be protected w/o disclosure
3. Minimum necessary to protect public interest
4. Won't render whole trial unfair
22
Third Party Disclosure
Where:
- Third party is likely to be able to give or produce material evidence in the case AND
- The 3rd party will not voluntarily attend or produce the evidence
23
Multi-count indictments (Lawful joinder of counts)
Only where:
- counts founded on same set of facts OR
- counts form part of a series of offences which are similar in nature
24
Multi-offence counts (Avoiding duplicity)
Multiple incidents in a count only if amount to a 'single course of conduct'
25
Specimen Counts
Suitable where:
- P unable to supply particulars of all offences
- P can supply but offences so numerous and similar that trial would be unworkable
26
Avoiding overloading of indictment
Must not join or pack where:
- result in unduly long/complicated trial
- place an unfair burden on jury
- not in interests of justice
(leave sum to lie on file)
27
Joinder of Ds, separation of Ds
Counts properly joined will be tried together (where all Ds participated in same offence OR
Offences sufficiently linked)
Only separable if single trial would "prejudice or embarrass D in the conduct of his defence" OR desirable for some other reason
Because: avoids inconsistency, W burden, cost
28
Challenging defective indictment
Quash if technically defective indictment and no means of correcting defect
Stay where abuse of process (not technical issue with indictment)
JR of underlying sending/committal
29
Variation of case management orders
Material change of circumstances AND in interest of justice to vary/discharge
30
Dismissal Applicaiton
After evidence but before arraignment where:
- evidence is not sufficient for D to be properly convicted
31
Admissibility of evidence
Admissible where relevant and not excluded by rules or discretions
Relevant if logically probative or disprobative of a fact in issue
(Weight is extent to which evidence does this and v. low relevance said to lack 'sufficiency')
32
CL evidence exclusionary discretion
Where prejudicial effect outweighs probative value
(likelihood of evidence being used in wrong way by jury outweighs its usefulness to a fair and rational jury in proving the matter)
33
Statutory exclusion of evidence
Confessions 76 PACE
Unfair Evidence 78 PACE
Bad Character
Hearsay
34
Evidential burden and challenge
To adduce sufficient evidence to satisfy the tribunal of law that a fact in issue is live
Failure results in application to dismiss (pre-trial) or of no case to answer (half-time)
35
Legal burden
obligation to prove a fact in issue to the relevant standard of proof
36
Reverse burdens
Reverse evidential:
(self-defence, duress, intoxication)
Reverse legal:
- insanity defence
- specified by statute
- implied by statute
37
HRA and reading down reverse burdens
Presumption of innocence not absolute but must be a
compelling reason why reverse burden is fair and reasonable
May 'read down' to REB based on (factors):
- compelling reason to deny D the normal standard of protection of the presumption of innocence
- Seriousness of potential punishment
- extent and nature of factual matters D has to prove
- ease of proving those matters
- pressing social problem
38
Comeplability of D
- For P: Not competent / not compellable (whether charged alone or with others)
- For D: Competent / not compellable
- For Co-D: Competent / not compellable
But becomes compellable if ceases to be co-D
39
Compelability of Spouse
Competent and compellable except for
- assault or injuring (or threat of) against them
- same to under 16
- sexual offence under 16
- aiding abetting counselling, procuring, inciting any of the above
Unless co-D, in which case those rules apply
40
Oath lawfully administered where
Appears to the court that binding on W's conscience AND
W considers it binding on his conscience
41
Sworn youth W evidence
- Over 14
- Sufficient understanding of:
-- solemnity of the occasion AND
-- the particular responsibility created by the oath to tell the truth
(under 17 can promise rather than giving oath)
42
Test for W capacity
Where able to give intelligible testimony:
- Able to understand questions put to him AND
- Able to give answers that can be understood
(determined by judge w/o jury)
43
W must call W
Everyone who gives evidence on the primary facts of the case even if inconsistent UNLESS
unworthy of belief
44
Memory Refreshing before giving evidence
Present recollection revived where:
- document made or verified by him and records recollection at an earlier time when memory significantly better than now
Past recollection recorded where:
- Believes to best of knolwedge and belief that made the statement AND
- made when matter was fresh in mind
- doesn't remember now AND cannot reasonably be expected to remember them
45
Whole memory refreshing doc before jury where
Will assist in determining an issue OR
Hard for jury to follow XX OR
Convenient aide-memoire to lengthy evidence
46
Previous Consistent Statements
Not admissible unless:
- Res gestae (statement made so closely in time, place, and circs that can be regarded as part of the transaction)
- exculpatory statement made on accusation
- rebuttal of accusation of recent fabrication
- previous identification of person/object/place
- memory refreshing
- previous complaints in the specified circs
47
Hostile witness
More than merely unfavourable, must not be desirous of telling the truth
48
LiP cannot XX where
1) W victim and D charged with sexual offence (in relation to any charge in those proceedings)
2) W is a child (<14 for other) and D is charged with sexual offence/kidnapping/child cruelty or any offence involving assault, injury or threat of injury
OR where court exercises statutory discretion to stop XX on basis:
-- Quality of evidence likely to be diminished if XX conduct by accused in person AND
-- would likely be improved if a direction were given AND
-- not contrary to the interests of justice
49
Previous Inconsistent Statements
Can be put to both sides' W but only own after found hostile
If accepted then evidence of contents AND credibility,
If denied then only of credibility. Also Before proving must identify circumstances of supposed statement sufficient to designate particular occasion AND must be asked whether made statement
50
XX as to credit
Proper only if Qs contain imputation the truth of which would seriously affect the opinion of the court as to the credibility of the W (not where a 'great disproportion' between importance of imputation and importance of the evidence)
51
Sexual History XX
Cannot adduce evidence unless judge satisfied refusal 'might render conviction unsafe' AND
Qs relate to one of:
- an issue other than consent
- consent or behaviour at or about the same time as the alleged offence
- Consent and behaviour so similar to any sexual behaviour of the complainant that similarity cannot reasonably be explained as a coincidence
- rebutting/explaining evidence adduced by P about complainant's previous sexual history and would go 'no further than necessary'
PLUS it isn't reasonable for court to assume that main purpose is impugning credibility of complainant as a W
52
Rule of Finality
Cannot adduce further evidence on a collateral issue where W given answer UNLESS involves:
- previous conviction
- suggestion of bias
- reputation for untruthfulness
- disability afecting reliability
53
Special Measures engaged
- Under 18 OR
- sexual violence complainant OR
- where quality of evidence will be diminished because of:
-- mental disorder
-- impairment of intelligence social functioning
-- physical disability or disorder OR
-- fear or distress at giving evidence having regard to
--- offence
--- age
--- social/cultural/ethnic background of W
---- politics and religion of W
---- behaviour of D and associates towards W
54
Special Measures available
Screen
Live link
Removal of wigs/gowns
Pre-record XIC and/or XX
- automatic unless not in interest of justice
- Using an intermediary (not for fear)
- Device to communicate with 3rd party (not for fear)
- Excluding specified persons from court (only for fear or sexual offences)
Having regard to views of W and whether measures may inhibit testing of evidence effectively
55
Procedures to facilitate giving of best evidence
- Ground rules discussion must be held in advance of trial if intermediary
- discussion best practice for all young W or where communications needs
(at least day before)
- Divide issues between counsel
- May dispense with putting case
- Inconsistencies highlighted after XX not during
- Limitations on XX should be clearly defined, enforce, and explained to jury
- Body maps rather than pointing to W's own body
- Direction to jury at time if Counsel breaks rules
- Avoid suggesting wrongdoing to young person without reasonable grounds
56
Witness Anoynymity order
Only where "necessary":
- to protect safety OR
- prevent real harm to public interest
AND
- consistent with a fair trial
- importance of testimony such that in interests of justice W testify anonymously
- w/o such an order W will not testify OR real harm to public interest
57
Hearsay
- Statement (any representation of fact or opinion, made by whatever means)
- Made other than in oral proceedings
- adduced as evidence of truth of matter stated
- Where express purpose was to cause another to believe the truth of the matter stated OR cause a person or machine to act on that basis
58
Original evidence by those not giving evidence in oral proceedings
Statements adduced to show:
- speaker's state of mind
- listener's state of mind
- that statement made
- statement to prove lies
- statements a fact in issue
59
Exceptions to rule against hearsay
Type 1. Statutory exceptions
- unavailable witness (not for MH)
- business documents
(+ previous statement)
- interests of justice
Type 2. Common law exceptions (not for MH)
- res gestae
- confessions
- admissions by agents
Type 3. Agreement
60
Unavailable W hearsay gateway
- Oral evidence would have been admissible from maker
- Maker can be identified
- Maker unavailable because:
-- dead
-- unfit through bodily or mental condition
-- outside UK and not reasonably practicable to secure attendance
-- cannot be found despite having taken all reasonably practicable steps to find
-- fear (w. leave) factors:
[--- statement contents
--- any risk that its admission or exclusion will result in unfairness to any party
--- the fact that special measures imposed
--- any relevant circumstance]
61
Computer output
Real evidence where produced automatically without manual input
If reliant on human input for accuracy then not admissible unless underlying information proved accurate
62
Business Doc gateway for hearsay
Where:
- Oral evidence of the same matter would be admissible
- Document was created or received in the course of a business
- info supplier had (or can reasonably be supposed to have had) personal knowledge of the facts
Where chain:
- each member of the chain dealt with the information in the course of his occupation
Where docs from crim investigation/proceedings:
- also satisfy s.116 gateway OR
- maker cannot reasonably be expected to remember the contents
63
Interests of Justice gateway for hearsay
Factors:
- probative value
- other evidence available
- importance of evidence
- circs in which made
- reliability of statement maker
- reliability of evidence
- whether oral could be given
- difficulty challenging
- prejudice that evidence may cause
(NOT circumventing other rules)
64
CL Hearsay gateways
Public information
Expert evidence
'Common criminal enterprise' (by D1 to D2 in pursing CCE)
Character evidence
Confessions
Family Tradition
Statement accompanies an act which can be evaluated only together
Statement relates to an emotion or intention
Res Gestae:
- unusual/startling/dramatic event so emotionally overpowered maker that risk of concoction can be disregarded as it was a contemporaneous, instinctive reaction
65
Multiple Hearsay Gateway
Only for business docs, previous consistent/inconsistent statements OR where passes heightened interests of justice test
- value of evidence
- taking into account how reliable appears to be
- 'so high that interests of justice require the statement be admissible'
66
Exclusion of hearsay
- General discretion where: 'dangers of admission substantially outweigh the benefits'
- under s.78 PACE
- any other discretion
- Stop case if risk of unsafe conviction
67
Bad Character general exclusionary rule
MUST be excluded if, on application by D, "it appears that the evidence would have such an effect on the fairness of proceedings that it ought not be admitted"
68
Admitting Non-D Bad Character
- parties agree OR
- important explanatory evidence AND
- substantial probative value in relation to a matter in issue in the proceedings
(or of substantial importance in the context of the case as a whole)
Factors:
- nature and number of events or other things to which the evidence relates
- When alleged to have happened or existed
- (for similarity) degree of similarity
- (for ID) extent to which the evidence shows or tends to show that the same person was responsible each time.
69
Gateways for D Bad Character
- Parties agree
- D volunteers
- Important explanatory evidence ('impossible/difficult for jury to understand otherwise' AND value for understanding case as a whole is 'substantial')
- Relevant to an important matter in issue between D and P (inc. propensity to commit offences AND to be untruthful - applying Hanson criteria for assessing weight)
- Substantial probative value in relation to an important matter in issue between D and Co-D
- Corrects a false impression given by D
- D has attacked another person's character
70
Childhood bad character
For D over 21, offences before 14 not admissible unless I-only AND
in interests of justice
71
Prove past conviction
Certificate of Conviction signed by officer of convicting court
P must call W to produce it AND confirm that D is the person on/or witnessed the certificate
Presumed to have committed offence unless proven otherwise
Can admit any document admitted as evidence in the conviction or the charge sheet/indictment/information etc. to prove facts on which that conviction was based
72
Good Character Direction
Entitled unless bad character adduced
Vye direction:
Positive affirmative statement for benefit of d:
- Regarding credibility - D of good character is more likely to be telling the truth
- Regarding propensity - D of good character is less likely to have committed the offence
If D has previous but not relevant he may be considered as of 'effective good character' and judge can decide whether to give modified
Co-Ds w/o good character do not stop Vye directions for the others
73
Confession definition
"Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise"
Admissible if relevant against D but, where implicates Co-D only against Co-D where comments such as to adopt them
74
Excluding confessions
s.76 MUST where oppression OR as a result of something said or done to D which was likely to render any result confession 'unreliable'
Unless P proved contrary to BRD or Co-d to BoP
+ s.78 also
75
s.78 Exclusion of P evidence in general
Court may refuse to allow evidence on which P proposes to rely where:
- having regard to all circs
- evidence that would have such an adverse affect on the fairness of the trial that it ought not to be admitted
76
Lucas direction given where
D has raised an alibi OR
Judge has told jury to look for supporting evidence such as lies OR
P relying on lie as evidence of guilt OR
real danger that jury will rely on lie
77
Lucas direction content
Lie can only support or strengthen evidence against D if it is:
- deliberate AND
- relate to a material issue AND
- motivated by realisation of guilt or fear of the truth AND
- shown to be untrue
AND Jury should be informed that:
- people lie for many reasons such as shame or to bolster a just cause and not from guilt
- may concoct a false alibi to support a real defence
- must be sure "beyond reasonable doubt" that the statement is a lie before it can be used as evidence of guilt
78
Adverse inference - D fails to disclose facts of defence under questioning
- Fails to mention fact
- Later relied on fact as part of defence
- Failure to mention under Q must be unreasonable
- Only reason for failure was that he had no answer or none that would survive XX
Circumstances:
- Questioning must be after caution AND before charge
OR upon being charged
- Questioner must have been a police constable or other person with duty to investigate offences
- Qs must have related to whether and by whom offence was committed
- D must have been allowed legal advice
(Not usually an inference if true.)
79
Direction given about adverse inference (failure to disclose defence fact during questioning)
- D was not bound to answer
- Inference from silence alone cannot prove guilt
- P must have established case to answer before any inference can be drawn
- For jury to decide if D could reasonably have answered
- Inference can only be drawn if jury satisfied that did not answer Q because he did not have an answer or none that would survive XX
80
Adverse inference failure to account for incriminating evidence
Adverse inference where:
- fails to account for object, substance or mark which is found on:
- person, clothing, footwear, in possession, at place of arrest
- when arrested by constable and asked for an explanation (having been informed of the consequences of a failure to explain)
Context:
- constable had reasonable belief that presence is attributable to participation in the commission of an offence
- D had access to a solicitor if questioned in a place of authorised detention
Court can draw adverse inference as to:
- Whether D has a case to answer
- Whether D is guilty
81
Adverse inference (scene of crime)
Inference where D fails to account for his presence at the scene of a crime
- at or about the time the offence was believed to have been committed
(Otherwise same as for object/substance/mark) ...
Court can draw adverse inference as to:
- Whether D has a case to answer
- Whether D is guilty
Inference can only be drawn if:
- D was arrested by a constable (or customs officer)
- D was informed of the consequences of a failure to explain
- D had access to a solicitor if questioned in a place of authorised detention
82
Turnball warning
The judge should warn the jury of the special need for caution where:
- P case rests wholly or substantially on the correctness of one or more identifications of D
- which D alleges to be mistaken
83
Withdraw case on questionable ID evidence
Where the identifying evidence is poor, the judge should withdraw the cases from the jury
- UNLESS there is evidence to support the reliability of the identification
84
Turnbull warning content
- Explanation that case wholly or substantially relies on ID which is in disputed
- Warned of the need for special caution
- Mistaken W can be convincing and a number of W can be mistaken
- Carefully examine the circumstances of the ID with regard to these factors:
-- Length of time of the observation
-- Distance from which observation was made
-- Lighting conditions
-- Any obstruction to the view
-- Had the W seen D before and if so how often or was there some special reason for remembering D
-- Time between the initial observation and any subsequent identification procedure
- Reminder of any specific evidential weaknesses
- Recognition more reliable than identification but still fallible
- Identify evidence which is capable of supporting the ID and evidence which is not
• Not required where:
• No real question of mistaken ID
• When evidence given is of general characteristics
• When D alleges that W is lying about having identified D
85
Identification evidence exclusion
Where:
- unreliable
- obtained in bad faith
- obtained in breach of fundamental rights
86
Low quality / Suspect Evidence
Generally: no need to warn jury about quality of evidence UNLESS "suspect" (liable to be unreliable)
- judge's discretion whether to give a warning
- depending on circs of the case, issue raised, and content/quality of the W's evidence
- evidential basis for suggesting that evidence may be unreliable
Warning:
- general evidential, rather than stand-alone
- strength and terms in judge's discretion
- CA only interfere where Wednesbury
87
Expert evidence
- Subject matter calls for expertise
- W has requisite expertise
- Body of knowledge which is sufficiently organised and recognised to be accepted as a reliable body of knowledge or experience
expert must be aware of overriding duty to court AND
willing to fulfil that duty
88
Non-expert opinion
- Opinion on a matter not calling for expertise
- made as a way of communicating facts personally perceived by the W
- as evidence of what was perceived
89
Important Explanatory Evidence
'impossible/difficult for jury to understand otherwise' AND value for understanding case as a whole is 'substantial'
90
'Important matter in issue' between D and P (Hearsay gateway D)
Includes:
1) D's propensity to commit this type of offence (unless only legal defence, not fact-based) Hanson test:
-- Does conviction history establish propensity (detailed consideration of volume, factual similarity, and period of previous offending)
-- Does propensity make it more likely that D is guilty?
-- Would it be unjust to rely on the previous convictions and would admitting them make the trial unfair?
2) D's propensity to be untruthful (unless no suggestion of untruthfulness)
- typically only used where dishonesty an element of offence charged
Often used for Similar fact evidence
91
Juvenile age categorisation
Under 10 - irrebutably presumed incapable of offence
10-13 - child
14-17 - young person
92
Police options for dealing with a juvenile offender
- Take no action
- Community Resolution
- Youth Caution
(where child admits, sufficient evidence to charge, not in public interests, appropriate adult available)
- Youth Conditional Caution
(as YC but w. conditions, non-compliance w/o reasonable excuse leading to...)
- Charge
93
Youth Court Sentencing Powers
- Absolute Discharge
- Conditional Discharge
- Fine (£250 10-13/£1k 14-17)
(must be ordered against parents if 10-15, may be if 16 or 17)
- Referral Order (3 - 12 month)
(mandatory where pleads guilty AND 1st conviction UNLESS not in interests of justice, discretionary where more than 1 offence charged and didn't plead G to all)
- YRO (up to 3 years, unless already serving one)
(unpaid work/ activity/prohibited/supervision/attendance/mental health treatment/curfew/exclusion/residence/local authority residence/education/drug treatment/drug testing/alcohol testing/)
- Detention and Training Order (6 months for summary, up to 24 months in YC, Long Term Detention in CC)
(Not for 10-11, 12-14 only where 'persistent offender', 15-17 w/o restriction)
94
YRO Breach
3 times before proceedings
Actions:
- none
- Fine
- Amend YRO
- Revoke YRO and re-sentence for original
95
DTO Sentencing
Must have passed custody threshold
AND
Max sentence for adult for same offence would have to be at least 4 months
Max sentence on summary 6 months
Detained for half then supervision requirement for second half
Failure to comply with supervision requirement can result in a fine
96
Youth sentencing principles
Principal: Prevent reoffending
Secondary: Welfare of Youth-D
(So previous convictions not necessarily aggravating factor)
97
Adult Court remit Youth to YC for sentencing
Must remit unless 'undesirable to do so' on grounds of cost or delay
OR
MC and: Youth-D must receive mandatory YRO OR can properly be sentenced a/c discharge, fine or parenting order
OR
CC and LTD (14 yr+/s.91 listed)
98
Adverse Inference (not testifying)
Unless physical or mental condition makes undesirable OR
legal privilege/ statutory exclusion/ court rules:
Direction:
- accused has a right not to give evidence but warned that failure may lead to inference
- cannot prove guilt alone but can assist in determining guilt
- if reason given then jury should consider it (and not draw inference if accept it)
- if only sensible explanation that has no answer to case against him or none that would withstand XX then it would be open to hold against him his failure to give evidence
99
Adverse Inference (not calling evidence)
Not usual to make comment. Must be very careful.
100
Discount for guilty plea
- 1/3 for earliest opportunity
- 1/4 for plea at PCMH or when trial date set
- 1/10 for plea on day of trial or after commenced
- Less for overwhelming guilt 1/20 to none
- Less for failed Newton (max 1/5)
101
Sentence Thresholds
• Custody Threshold = that the offence, or combination of associated offences, is so serious that neither a fine alone nor a community sentence can be justified for the offence
• Community Sentence threshold = offence/combination serious enough to warrant such a sentence
102
Fine levels in sentencing
- Youth Court
o 15-17 YO = £1000
o 10-14 YO = £250
- Mags:
o Five levels in Mags from £200 to £5,000
o Five bands based on percentage of D’s relevant weekly oncome from 25% to 500%
o Maximum fine is £25,000 for five counts
o May impose a sentence in default which activates if default on payment
- Crown Court
o Unlimited fine
o Instead or in addition to dealing with D in any other way
o Must impose a sentence in default
103
Totality principle
Sentence must:
- reflect all of the offending AND
- be just and proportionate
104
Compensation Orders
• Court Must consider making a compensation order where offence caused injury, loss or damage.
• Max £5k per offence
• Order should be made wherever possible
• Can be made in addition to fine BUT
• if D only has means to pay a bit then preference given to compensation over fine
• Financial loss and PSLA both considered
• Court considers all the circumstances inc. evidence of harm
105
Forfeiture
- Court may deprive an offender of property used to commit or facilitate an offence (considering impact on D)
- For drugs cases can order forfeiture and destruction of anything shown to relate to the case
106
Sex offender registration
• Where convicted of specifed sexual offences, D must comply with notification requirement
• Full name added to sex offenders register
• Must provide police with full name, address, date of birth, NI number, vehicle details, as required by SSHD
• Must notify of any change and of travel outside UK
• Those convicted overseas may be subject to a notification order on application by the police
107
P appeal against acquittal (rare)
P can appeal against acquittal (notwithstanding double jeopardy rule) in extremely exceptional circumstances:
• Offence was serious AND
• New evidence has come to light which is reliable, substantial, and highly probative AND
• Prosecution would be in the interests of justice AND
• P could not have found or used this new evidence before (e.g. science develops)
108
Grounds of appeal to CA
• Against conviction: only basis that the conviction is unsafe e.g. where there have been:
• Errors in course of trial
• Defective summing up
• Errors in trial prep
• Jury abnormalities
• Against sentence where one of:
• ultra vires
• wrong in principle
• manifestly excessive
• judge took the wrong approach to sentencing
• procedural error
109
Loss of Time Direction
• CA can direct that time spent in custody pending determination of an appeal will not count towards custodial sentence...
• where application renewed, after 1st judge denial, despite being "wholly without merit"
110
CA hears new evidence
Will hear evidence where necessary or expedient in the interests of justice to do so (typically only where fresh)
Factors:
• capable of belief
• afford any grounds for allowing the appeal
• would have been admissible at trial
• issue which is the subject of the appeal
• reasonable explanation of failure to adduce it
111
Unduly lenient
Where Att Gen considers that sentence passed is "so lenient as to fall outside of the range of sentences which a judge, applying all relevant factors, could reasonably consider appropriate"
Only available in indictable matters
112
SC appeal
"points of general public importance"
113
Discharge single juror
The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
114
Abuse of Process
Test to stay indictment:
• impossible to give D a fair trial (MC/CC)
OR
• Proceedings amount to a misuse/manipulation of process and it would offend the court’s sense of justice and propriety to try D in the circumstances of the case (CC only, in this case MC should adjourn and allow application to HC)
Factors
• Disclosure failures by P
• Adverse publicity in media
• Key evidence unavailable for D to examine
• Delay in charging D
115
MC Failure of D to attend
Court course of action:
• Must hear if over 18 UNLESS contrary to interests of justice
• May if under 18
Cannot proceed if:
• Acceptable reason OR
• E/W and D not previously consented to summary
116
Proceed in absence when D pleads guilty by post
Only available if:
• Summary offence
• Proceedings commenced by a summons or charge and requisition
P must have served all of these on D and notified court of this:
• Summons/Charge and requisition
• Statement of the facts on which P relies or the WSs
• Information about D that may be put before the court
• Notice explaining the process for pleading by post
Procedural points:
• D may include a statement of mitigation
• D may withdraw postal plea before hearing OR may be permitted to do so at the hearing
• If D pleaded by post then neither P nor D will be represented at court but
o clerk must still read charge in open court
Mags may:
• sentence in absence OR
• adjourn for D to be present
(MUST if wish to impose a custodial sentence or a disqualification)
117
D disorderly
• If D behaves in such a manner that proceedings cannot continue he will be removed and trial will continue
• So long as: legally represented UNLESS
• Statute requires presence
118
Dangerous Offender Sentencing
Life sentence for Dangerous Offenders:
1) Offence "serious" = specified sexual or violent punishable with life imprisonment
2) dangerousness test - 'significant risk of serious harm by commission of further specified offences'
3) this offence punishable with life
4) Sentence condition - court considers justifies life
= MUST pass life sentence
Life sentence for 2nd Listed Offence:
1) Offence specified in Part 1 Sch.15B
2) Sentence Condition - merits 10 yrs+
3) Previous Offence Condition - D previously convicted of Sch.15B offence (4) w. life (5+) or fixed 10+
= MUST PASS life UNLESS unjust to do so
Extended Sentence
1) Offence specified within Sch.15
2) dangerousness test - 'significant risk to public of serious harm as a result of the commission of further specified offences'
3) Other dangerous offender provisions don't apply
4) D has previous Sch.15B conviction OR this offence 4+ years
= MAY impose extended sentence
119
Defendant’s Costs Order
For D’s costs out of central funds where:
o Information laid before court not proceeded with
o Court dismisses an information
o D sent for trial but not tried
o D tried and acquitted on indictment
o D successfully appeals Mags’ Court conviction or sentence in CC
o D successfully appeals a CC conviction in CoA
BUT always in discretion of court having regard to circs
Costs awarded will cover:
o Expenses properly incurred
o to a just and reasonable sum (if not full costs)
o Capped at Legal Aid rates
o No cover for private counsel in Crown Court
120
Jury Qualification
• Any person between 18 and 70, on electoral role, who has lived in UK for 5 years since 13, UNLESS:
o Mentally disordered OR
o Disqualified due to:
• On bail
• Past custodial sentence over 5 years in UK
• Any custodial sentence (inc. suspended) in last 10 years in UK
• Community order in last 10 years in E&W
121
Discharge whole jury
Where:
o Hears inadmissible and prejudicial evidence and judge concludes Real possibility of injustice
o Cannot reach a verdict
o Individual juror discharged and risk that contaminated rest of jury
122
No case to answer
In MC: P’s evidence is insufficient for any reasonable court properly to convict
In CC: (Galbraith test) The evidence “taken at its highest is such that no reasonable jury, properly directed, could properly convict”
In CC will fail where:
o Evidence on which jury could properly convict OR
o Strength of case relies on matters exclusively for the jury to decide (such as W credibility)
123
Silence under legal advice
Silence on legal advice only avoids inference if jury believe that D genuinely and reasonably relied on that advice.
124
Extend CTL
P must prove:
- on BoP
- good and sufficient reason for extension
- conducted case with due diligence and expedition
Having applied before expiry of CTL
125
Admitting previous complaint
- W gives evidence that he made statement and it is true
AND
- W victim of offence
- W has made complaint about offence
- not elicited by threat/promise
- W gives evidence before statement adduced
THEN:
- evidence of truth of matter and of consistency
126
Admissibility of wholly exculpatory/inculpatory/mixed statements
Wholly exculpatory not admissible as evidence of the truth but admissible as evidence of D's reaction in face of incriminating facts
Inculpatory: admissible as both fact and reaction
Mixed: as inculpatory (fact and reaction)
127