Tests Flashcards
(127 cards)
Defence Funding
From CDS where:
- Interests of Justice Test AND
- Means Test
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
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- D has not withdrawn his earlier consent
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)
Adjournment vs Remand
Adjournment - no date, not an offence not to attend
Remand - Must set a date, offence not to attend
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
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)
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
Bail Conditions
Surety Security Reporting Tagging Curfew Exclusion zone Non-contact
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
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
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
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
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
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.
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
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
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)
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)
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
Public Interest Immunity
Court permission where:
- Any real “risk of serious prejudice to an important public interest”
- D’s interests can be protected w/o disclosure
- Minimum necessary to protect public interest
- Won’t render whole trial unfair
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
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
Multi-offence counts (Avoiding duplicity)
Multiple incidents in a count only if amount to a ‘single course of conduct’