The law, procedure and processes involved in pre-trial considerations

Question 1

Bail is:

Answer 1

the release of a defendant from custody UNTIL he is next due to appear in court, subject to certain security being given OR certain conditions being met.

Question 2

Unconditional bail:

Answer 2

imposes an obligation on a defendant to attend court at a future specified date and time.

Question 3

Defendant fails to attend court?

Answer 3

a warrant of arrest will be issued.

Question 4

Bail with conditions:

Answer 4

obligation for a defendant to attend court at a specified future date BUT with conditions as to their conduct UNTIL that date.

Question 5

Bail Act 1976 creates a general presumption in favour of?

Answer 5

a bail

Question 6

General right to bail is subject to?

Answer 6

the rules on refusing bail (schedule 1, BA 1976).

Question 7

General right to bail for -
(part 1):

Answer 7

Accused before conviction when he –
Appears or is brought before a Magistrates’ Court or the CC in the course of OR in connection with the proceedings for an offence.
OR applies to a court for bail (or a variation of bail conditions) in connection with proceedings.

Question 8

General right to bail for -
(part 2):

Answer 8

Offender after conviction during an adjournment for reports.

Question 9

General right to bail for -
(part 3):

Answer 9

An offender who, after being convicted of an offence, appears, OR is brought before a MC or the CC for breach:
Requirement of a community order.
Of a reparation order.
Revocation/amendment of a youth rehabilitation order.

Question 10

No right to bail:

Answer 10

Someone before the CC awaiting sentence.
Someone before the CC awaiting appeal against conviction or sentence.
UNLESS exceptional circumstances, for someone charged with or convicted of:
Murder, attempted murder, manslaughter, rape or attempted rape, and a number of serious sexual offences
AND previously be convicted of any of these offences.

Question 11

Case of murder, an application of bail MUST?

Answer 11

be transferred to the CC, and bail may not be granted
UNLESS court satisfied there is no significant risk that if the defendant is released on bail, defendant would commit an offence that would be likely to cause physical, or mental injury to another person.

Question 12

General right to bail subject to statutory exceptions on refusing bail (part 1 of schedule 1, BA 1976) which will vary depending on the classification of the offence with which the defendant has been charged
AND whether that offence carries a custodial sentence –
indictable and either-way offences:

Answer 12

Accused or convicted of indictable and either-way imprisonable offences (paras 2-7 of Part 1 of schedule 1, BA 1976 for the full list of grounds)
BUT most common grounds to refuse bail being granted are that there are substantial grounds for the believing that the defendant will:
Fail to surrender to custody.
Commit an offence whilst on bail
OR interfere with a witness to a case.

Question 13

General right to bail subject to statutory exceptions on refusing bail (part 1 of schedule 1, BA 1976) which will vary depending on the classification of the offence with which the defendant has been charged
AND whether that offence carries a custodial sentence –
summary only offences:

Answer 13

Accused or convicted of summary only imprisonable offences – bail CAN be refused on the following grounds:
Failure to surrender to custody.
Commission of further offences.
Fear of commission of offences likely to cause another person to suffer OR fear physical OR mental injury.
Defendant’s own protection.
Defendant serving custody.
Arrested for absconding or breaching bail conditions AND there are substantial grounds for believing that they would fail to surrender, commit an offence, interfere with witnesses, OR obstruct the course of justice.
Lack of sufficient information to determine bail.

Question 14

General right to bail subject to statutory exceptions on refusing bail (part 1 of schedule 1, BA 1976) which will vary depending on the classification of the offence with which the defendant has been charged
AND whether that offence carries a custodial sentence –
non-imprisonable offences:

Answer 14

Accused or convicted of non-imprisonable offences - bail WOULD be refused on the following grounds:
Been convicted of the offence, having been previously granted bail AND failed to surrender and the court believes that they would fail again to surrender to custody if granted bail.
Should be kept in custody for their own protection OR welfare (if under 18 years old).
Already serving a custodial sentence.
Been arrested for absconding or breaching bail conditions and there are substantial grounds for believing that they would fail to surrender, commit an offence, interference with witnesses OR obstruct the course of justice.

Question 15

Detailed statutory factors (para 9 of Part 1 of schedule 1, BA 1976)
Courts must take into account when deciding if there are substantial grounds for refusing bail broadly include:

Answer 15

• Nature/seriousness of the offence.
• Character of the defendant.
• Antecedents
• Associations
• Community ties.
• Defendant’s record regarding previous grants of bail.
• Strength of evidence against the defendant.

Question 16

Statutory exceptions to refuse the right to bail and remand a defendant in custody WILL NOT apply regarding bail proceedings where:

Answer 16

Defendant has attained the age of 18.
Defendant HASN’T been convicted of an offence in those proceedings
AND appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence.

Question 17

MC will begin with the presumption that the defendant has?

Answer 17

a right to bail without conditions UNLESS grounds exist for imposing bail conditions for remanding the defendant in custody (s.4, BA 1976).

Question 18

Conditions can be added to the defendant’s bail only if such conditions are necessary (s.3(6), BA 1976 and s.8(1), Part 1 of schedule 1, BA 1976):

Answer 18

Attendance at court
Prevent offending on bail
Prevent interference with witnesses or obstruction of the course of justice.
Defendant’s own protection.
Defendant is available to assist with enquiries or preparation of reports.
Defendant attends an appointment with their legal representative before the next hearing.

Question 19

Necessary:

Answer 19

condition addresses a real and not fanciful, risk of the defendant failing to surrender to court, committing further offences while on bail OR interfering with witnesses.

Question 20

Commonly used bail conditions and the associated risks that they are intended to meet -
Absconding:

Answer 20

Confined to residence
Report to police station
Surety to pay
Security deposit
Surrender of passport

Question 21

Commonly used bail conditions and the associated risks that they are intended to meet -
Commission of further offences:

Answer 21

Curfew

Question 22

Commonly used bail conditions and the associated risks that they are intended to meet -
Interference with witnesses:

Answer 22

Non-contact with witnesses
Restriction on entering area

Question 23

Justices’ clerk will provide details of:

Answer 23

Case history
Any previous bail hearing decisions (with reasons for those decisions).

Question 24

Prosecution will provide details of:

Answer 24

Current allegation
Any previous convictions
Results of any drug tests.
Any bail representations

Question 25

Defence will provide details of:

Answer 25

Its version of the allegation Defendant’s circumstances Any bail representations

Question 26

No requirement for?

Answer 26

formal evidence to be given.

Question 27

After the justices' clerk, prosecution, and defence details - Court will then consider:

Answer 27

If right to bail applies Offence is indictable only, either-way or summary imprisonable, whether, if convicted, no real prospect of a custodial sentence being imposed. Any statutory exceptions to the right to bail.

Question 28

Court refuses bail, imposes bail conditions OR varies any conditions of bail, MUST?

Answer 28

give reasons for its decision AND those reasons MUST be recorded (s.5, BA 1976).

Question 29

Bail refused?

Answer 29

court will serve on the defendant a certificate of full argument.

Question 30

MC under a duty to consider bail at?

Answer 30

any subsequent hearing if the defendant is in custody AND the presumption of bail still applies.

Question 31

Further applications for bail depends on the hearing:

Answer 31

1st hearing – after the hearing where court initially refused to grant bail. Full application for bail using any arguments as to fact or law CAN be permitted (even if previously unsuccessful). Subsequent hearings – court need NOT hear arguments as to fact or law it has heard previously. Further bail application CAN only be allowed at this stage if the defendant is able to raise a new legal or factual argument regarding bail.

Question 32

Bail is refused to a defendant, that defendant CAN?

Answer 32

appeal to the CC judge.

Question 33

Appeal is heard by a CC judge in chambers and?

Answer 33

takes the form of a complete rehearing.

Question 34

Application MUST state the reasons why bail SHOULDN’T be?

Answer 34

withheld, any proposed conditions of bail and attach a copy of the certificate of full argument.

Question 35

Defendant MUST give the CPS...

Answer 35

24 hours’ notice of their intention to appeal AND the rehearing will normally take place within 48 hours of the initial refusal of bail.

Question 36

Prosecution also has a right to appeal to a CC judge against?

Answer 36

the grant of bail to a defendant charged with or convicted of an imprisonable offence.

Question 37

CC judge CAN refuse bail (defendant remains in custody) OR?

Answer 37

grant unconditional bail OR bail with conditions.

Question 38

Defendant granted bail MUST?

Answer 38

surrender to custody at the time and place specified by the court.

Question 39

Failure to surrender (absconding) is an offence UNLESS there is a reasonable cause. Penalties for absconding are:

Answer 39

Magistrates’ CAN impose a fine of up to £5000 and sentence of up to 3 months. CC CAN impose an unlimited fine and a sentence of up to a year.

Question 40

Breach of bail conditions is not criminal offence BUT a police officer has the power to arrest IF they have a reasonable grounds to believe that the defendant:

Answer 40

Not likely to surrender bail OR has broken any conditions of bail OR is likely to break any conditions of their bail.

Question 41

Defendant will be brought before a MC within 24 hours of arrest (or they must be released) who will decide to?

Answer 41

either remand them in custody or release them on bail.

Question 42

Classification of an offence will determine the track the case will follow in criminal courts:

Answer 42

Summary only – least serious offences and can only be triable in the MC. Either-way offences – an offence that is capable of being tried in either the MC or the CC depending on the seriousness of the case. Indictable only – serious offences that can only be dealt with in the CC.

Question 43

Defendant will have to pay for legal representation UNLESS?

Answer 43

they apply for a representation order (public funding by legal aid).

Question 44

Two-stage test for legal aid applications:

Answer 44

Interests of justice test – considers the merits of a case by applying the Widgery criteria. More serious the case or consequences, more likely an applicant will qualify for legal aid.

Question 45

Widgery criteria:

Answer 45

Likely that the applicant will lose their liberty. Likely that the applicant will lose their livelihood. Likely that the applicant will suffer serious damage to their reputation. Substantial question of law CAN be involved. Applicant MAY NOT be able to understand the court proceedings or present their own case. Applicant MAY need witnesses to be traced or interviewed. Proceedings CAN involve expert cross-examination of a prosecution witness. Interest of another person that the applicant is represented.

Question 46

Means test:

Answer 46

considers the applicant’s financial position, such as their household income, capital, and outgoings.

Question 47

Means test determines?

Answer 47

whether an applicant will be eligible for legal aid depending on the trial venue of the MC or CC.

Question 48

Defendant’s under the age of 18 or on certain government welfare benefits...

Answer 48

automatically pass the means test.

Question 49

Prosecution are required to serve initial details of the prosecution case (IDPC) which for summary and either-way offences broadly includes:

Answer 49

Summary of the offence and any account given by the defendant at interview. Defendant’s criminal record Witness statements and exhibits (including CCTV footage to be relied on at trial). Victim impact statement Medical or other expert evidence.

Question 50

IDPC must be served on the MC by?

Answer 50

the day of the 1st hearing.

Question 51

IDPC MUST be served on the defendant by?

Answer 51

the day of the 1st hearing (but can be requested earlier) or, where not requested, made available to the defendant at the day of the 1st hearing.

Question 52

Prosecution wishes to introduce information into their IDPC that HASN’T been made available to the defence, court will...

Answer 52

not allow it until the defendant has had sufficient time to consider it.

Question 53

For offences triable only on indictment, no obligation to provide?

Answer 53

a IDPC at or before 1st hearing, and magistrates’ will send such offences to the CC (as they don’t have jurisdiction to try the case or sentence the defendant) with standard directions as to when the prosecution MUST serve their evidence.

Question 54

Role of the defence solicitor is:

Answer 54

Review the IDPC and the strength of the prosecution’s case and evidence. Interview the client and review his evidence. Advise the client on plea (including a reduced sentence for entering an early guilty plea) and trial venue. Advise the client as to any bail application. Make any necessary representation order.

Question 55

Plea?

Answer 55

is the response given by a defendant to a charge list against him by a court.

Question 56

An accused can plead:

Answer 56

Guilty Not guilty

Question 57

Summary only offences – deal with in MC - Guilty? Not guilty?

Answer 57

magistrate will sentence immediately or adjourn for any pre-sentence reports required. magistrates will adjourn and set a date for trial.

Question 58

Indicatable only offences – magistrates will send to the CC due to the seriousness of the offence: Guilty? Not guilty?

Answer 58

court must make arrangements for the CC to take the defendant’s plea as soon as possible. court MUST make arrangements for a case management hearing in the CC.

Question 59

Either-way offences – magistrates MUST first decide whether an either-way offence is more suitable for trial in the MC or the CC: Known as the allocation decision (sometimes called the mode of trial decision) – Guilty? Not guilty?

Answer 59

Magistrates’ sentencing powers are sufficient, defendant will be sentenced. If not, committed to the CC for sentencing. magistrates’ will proceed to the allocation hearing where the court will take a number of factors into account when determining the trial venue (which will have advantages and disadvantages for the defendant).

Question 60

Advising the client on trial venue:

Answer 60

Magistrates accepts an either-way case is suitable for summary trial, Solicitor will need to advise the defendant as to the trial venue (MC or CC) as there are advantages in favour of either venue.

Question 61

CC advantages:

Answer 61

Greater chance of acquittal. Better procedure for challenging admissibility of prosecution evidence. More time to prepare case for trial. Trial by jury.

Question 62

MC advantages:

Answer 62

Limited sentencing powers. Faster trial, less formal proceedings. Smaller contribution to prosecution costs. Funding privately, defence costs likely to be less. No requirements to serve defence statement to prosecution.

Question 63

What happens at the allocation hearing?

Answer 63

defendant has indicated a not guilty plea to an either-way offence the MC MUST make a decision if the offence is more suitable for summary trial in the MC or trial on indictment in the CC.

Question 64

MC will initially decide if they have sufficient sentencing powers to deal with the case UNLESS?

Answer 64

s.50a of the CDA 1998

Question 65

If they have inadequate powers, they will send the case to?

Answer 65

CC.

Question 66

Sufficient powers, defendant will be given a choice as to trial venue: Prosecution will?

Answer 66

inform as to facts and defendant’s previous convictions.

Question 67

Magistrates will consider:

Answer 67

Adequacy of the MC’s sentencing powers. Any representations by the parties as to the suitability of summary trial or trial on indictment. Any allocation guidelines issued by the sentencing council.

Question 68

Court decides the offence is more suitable for - trial on indictment?

Answer 68

defendant will be sent to the CC.

Question 69

Summary trial, must explain to the defendant –

Answer 69

Case is suitable for summary trial. Defendant can consent to be tried summarily or choose to be tried on indictment. If they choose to be tried summarily and convicted, they CAN be committed to the CC for sentence (rare).

Question 70

Defendant can request an indication of sentence (custodial or non-custodial) if...

Answer 70

they choose to be tried summarily and plead guilty.

Question 71

Defendant can request an indication of sentence (custodial or non-custodial) if they choose to be tried summarily and plead guilty - As a result CAN reconsider their plea from not guilty to guilty with the following possible outcomes regarding sentence:

Answer 71

Defendant changes their plea to guilty; they will be tried summarily though no court is bound by an indication provided by the magistrates’ BUT and any indication the court gave as to a non-custodial sentence will generally be followed. Defendant continues to plead not guilty, following an indication of sentence from the court, indication of sentence SHALL NOT be binding on the court should the defendant be found guilty. Any sentence given shall not be subject to challenge or appeal on the basis it is not consistent with the prior indication of sentence.

Question 72

Defendant’s choice – defendant maintains their not guilty plea, court MUST ask the defendant, do they consent to a summary trial?

Answer 72

Yes, proceed to summary trial in the MC. No, send for trial on indictment in the CC.

Question 73

In the following instances, either-way offence will be sent to CC without an allocation hearing, where:

Answer 73

Case involving serious or complex fraud. Case involving child witnesses. Offence relating to an offence triable on indictment only involving the same defendant at the CC. Related – arising out of the same circumstances. Case involving related to defendants (defendants are jointly charged and where the either-way offence is related to an indictable offence for which one of the defendants has been sent to CC).

Question 74

s.51 - magistrates’ can send certain summary offences to the CC; defendant is sent for trial on an either-way or indictable only offence:

Answer 74

summary only offence MUST arise out of circumstances which are the same or connected with those giving rise to one of either-way or indictable-only offences being sent for trial. Allow a defendant convicted in the CC to plead guilty and be sentenced for related summary matters.

Question 75

Criminal procedure rules have introduced a set of standard case management directions with which all parties must comply to:

Answer 75

Ensure efficient case management Deal with cases expeditiously. Protect the rights of all parties involved in the case.

Question 76

Court will give standard case management directions at the same hearing at which...

Answer 76

the defendant enters their plea of not guilty.

Question 77

Require the parties directions on?

Answer 77

how to prepare for and conduct the trial.

Question 78

These include standard trial preparation limits of 6 weeks (or 9 weeks if expert evidence involved) though the court can vary these time limits:

Answer 78

Written admissions – within 14 days Defence statement – within 14 days of initial duty of disclosure by the prosecution. Defence witness – within 14 days. Application for disclosure – as soon as reasonably practicable after the initial duty of disclosure by the prosecution. Written statements – 14 days before the trial. Expert evidence – within 28 days (expert’s report) Hearsay evidence – within 28 days (notice to introduce) Bad character evidence – within 28 days (notice to introduce) Previous sexual behaviour offence - within 28 days (notice to introduce) Points of law – 14 days before trial (skeleton argument) Trial readiness – 14 days before trial (certify readiness).

Question 79

PTPH requires?

Answer 79

that all cases MUST be listed for first hearing in the CC within 28 days of being sent from the MC.

Question 80

PTPH enables the defendant to?

Answer 80

enter their plea.

Question 81

Guilty plea entered on the PTPH the matter should?

Answer 81

proceed to sentencing on the same day or adjourned for a pre-sentence report (if required).

Question 82

Not guilty plea entered, case management SHOULD?

Answer 82

take place to prepare the matter for trial with the objective being that the following hearing will be the trial and a PTPH form MUST be completed.

Question 83

Rules governing both prosecution and defence disclosure is in 3 key stages:

Answer 83

Prosecution Defence Unused material

Question 84

Rules governing both prosecution and defence disclosure is in 3 key stages - Prosecution:

Answer 84

initial duty of disclosure on the prosecution whereby disclosable material it intends to rely on together with a non-sensitive material schedule is provided to the defence. Addition to the duty to serve the IDPC no later than the beginning of the day of the first hearing.

Question 85

Rules governing both prosecution and defence disclosure is in 3 key stages - Defence:

Answer 85

duty on the defence to serve a defence statement. This obligation only applies to a defendant facing a trial at the CC and not the MC. Defence statement is not provided/late/incomplete/inconsistent, the CC may draw an adverse inference against the defendant.

Question 86

Rules governing both prosecution and defence disclosure is in 3 key stages - Unused material:

Answer 86

continuing duty imposed on the prosecution (subject to the court granting the withholding of sensitive information for public interest immunity) to make available any relevant material which meets the disclosure test BUT which they don’t intend to use (unused material). Disclosure test is relevant material that might reasonably be considered capable of: Undermining the case for the prosecution. Assisting the case for the defence.

Question 87

Burden of proof is the obligation to prove or disprove a matter - Two types of burden:

Answer 87

Legal burden Evidential burden

Question 88

Legal burden?

Answer 88

prosecution MUST prove the defendant is guilty beyond reasonable doubt of all elements of the offence or disprove any specific defence raised by the defendant (examples, self-defence, alibi).

Question 89

Evidential burden?

Answer 89

obligation to adduce sufficient evidence on a fact in issue to justify, as a possibility, a favourable finding on that issue by the magistrate or jury

Question 90

Burden on the prosecution will be to? and prosecution fails to do this?

Answer 90

present sufficient evidence to justify a finding of guilt. Defence will make a submission of no case to answer.

Question 91

Burden on the defence will apply where?

Answer 91

the defence is raising a specific defence.

Question 92

Defence merely has to raise sufficient evidence for the matter to be?

Answer 92

considered by the court.

Question 93

Burden then passes to the prosecution to?

Answer 93

disprove the defence beyond reasonable doubt.

Question 94

Standard of proof is either:

Answer 94

Criminal standard – beyond reasonable doubt (must be sure). Civil standard – on the balance of probabilities (more likely than not).

Question 95

Court will exclude identification evidence if it has been obtained in breach of?

Answer 95

code D

Question 96

Breach of code D will occur if the police?

Answer 96

fail to hold an identification procedure when they are required to so OR where there has been failure to comply with a procedural requirement when conducting it.

Question 97

Breach of Code D will not automatically lead to?

Answer 97

the exclusion of identification evidence.

Question 98

Application to exclude identification evidence on the grounds of unfairness under s.78 PACE 1984 must establish:

Answer 98

There has been significant or substantial breach of Code D (as opposed to minor infringements) AND prejudice has been caused to the defendant as a result.

Question 99

CoA issued guidelines on how to deal with?

Answer 99

cases involving disputed identification (Turnbull guidance)

Question 100

Turnbull guidelines only apply when?

Answer 100

the case against the defendant depends wholly or substantially on the correctness of the identification and when that identification is in dispute.

Question 101

Guidelines require court to closely examine...

Answer 101

the circumstances of the identification (e.g., how long the witness had the accused under observation).

Question 102

Visual identification is poor (e.g., based on a fleeting glance) the guidelines state?

Answer 102

that a judge should withdraw the case from the jury.

Question 103

Failure to follow the Turnbull Guidelines CAN create grounds of appeal if?

Answer 103

a defendant is convicted wholly or substantially on disputed visual identification evidence.

Question 104

Following adverse inferences from silence can affect the defendant at trial and can be drawn by the court and the jury: s34?

Answer 104

questioned before charge or at the time of charge and failing to mention a fact that he later relies on in his defence or might be reasonably expected to have been mentioned at the time.

Question 105

Following adverse inferences from silence can affect the defendant at trial and can be drawn by the court and the jury: s35?

Answer 105

defendant who fails to give evidence on his own behalf at trial or who refuses to testify (silence at trial).

Question 106

Following adverse inferences from silence can affect the defendant at trial and can be drawn by the court and the jury: s36?

Answer 106

interviewed by the police, defendant refused or failed to account for the presence of an object, substance or mark.

Question 107

Following adverse inferences from silence can affect the defendant at trial and can be drawn by the court and the jury: s37?

Answer 107

questioned at the police station, defendant failed to account for his presence at a particular place or about the time the offence was committed.

Question 108

Following adverse inferences from silence can affect the defendant at trial and can be drawn by the court and the jury: s38(3)?

Answer 108

person who shall not have – case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), or 37(2).

Question 109

Oral testimony given in circumstances where the witness didn’t have personal knowledge of the facts given is called?

Answer 109

hearsay

Question 110

Statutory definition of hearsay is?

Answer 110

a statement, not made in oral evidence, that is relied on as evidence of a matter in it.

Question 111

What statute defines hearsay?

Answer 111

s.114(1) CJA 2003.

Question 112

Hearsay statements are generally deemed?

Answer 112

inadmissible

Question 113

Under s.114 CJA 2003, hearsay statements can be admitted as evidence in the following circumstances:

Answer 113

To allow evidence from absent witnesses where the witness is dead, unfit (bodily or mental condition), outside the UK, cannot be found or is in fear of giving evidence (s.116). Provision applies to first-hand hearsay and not multiple hearsay. Allow the admission of statements in business documents (s.117). There is preserved common law exception such as res gestae (the statement was made by a person so emotionally overpowered by an event the possibility of concoction or distortion can be disregarded) (s.118). Where there is agreement between all parties that hearsay evidence should be admitted (s.114(1)(c)). Where it is in the interests of justice to admit hearsay evidence (s.114(1)(d)).

Question 114

Confession is defined as including (s.82, PACE 1984):

Answer 114

Any statement wholly or partly adverse to the person who made it. Whether made to a person in authority or not. Whether made in words or otherwise.

Question 115

Examples of a confession include:

Answer 115

Something said during a police interview or during any other contact with the police (e.g., when under arrest or when being released from custody). Comments made during a regulatory or disciplinary investigation. Comments made during civil litigation Comments made to any third party in almost any circumstances.

Question 116

Confessions by an accused person are admissible as evidence in proceedings against him if:

Answer 116

It is relevant to any matter in issue in the proceedings. It is not excluded by the court under s.76 PACE 1984.

Question 117

Prosecution proposes to give evidence of a confession made by an accused person, and it is represented to the court that the confession was or may have been obtained (s.76(2) PACE 1984):

Answer 117

By oppression of the person who made it OR in consequence of anything said or done which was likely to render unreliable any confession which might be made by him. Court MUST NOT allow the confession to be given in evidence UNLESS the prosecution proves to the court, beyond reasonable doubt, that the confession wasn’t obtained in those circumstances.

Question 118

Oppression includes?

Answer 118

torture, inhuman, or degrading treatment, and the use or threat of violence.

Question 119

Unreliability includes:

Answer 119

Confessions obtained as the result of an inducement (e.g., a promise of bail or a promise that a prosecution wouldn’t arise from the confession). Hostile and aggressive questioning. Failure to record accurately what was said. Failure to caution. Failure to provide an appropriate adult where one is required. Failure to comply with the Code of Practice under PACE 1984. Failure of a defence solicitor or appropriate adult.

Question 120

Confession is obtained by oppression or in an unreliable manner the court must?

Answer 120

exclude it.

Question 121

Court can, using its discretion, exclude confession evidence if?

Answer 121

the court considers that the admission of the confession would have an adverse effect on the fairness of the proceedings.

Question 122

s.78 can be used where:

Answer 122

Defendant accepts having made the confession but alleges the police breached the codes or provisions of PACE 1984 OR defendant denies having made the confession (e.g., being approached and questioned by the police outside the police station, can also be Code C breaches).

Question 123

Bad character evidence can be adduced in respect of?

Answer 123

both defendants and witnesses and can be used to determine both credibility and guilt.

Question 124

Definition of bad character is the same for?

Answer 124

both defendants and witnesses.

Question 125

Bad character - evidence of, or evidence of a disposition towards, misconduct or other behaviour, other than (s.98 CJA 2003):

Answer 125

Evidence concerning the alleged offence with which a defendant is charged. Evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 126

Misconduct?

Answer 126

commission of an offence or other reprehensible conduct (s.112, CJA 2003).

Question 127

Defendant’s bad character is admissible if one of the seven criteria outlined in s.101(1)(a)- (g) CJA 2003 is satisfied known as?

Answer 127

the 7 gateways

Question 128

Criteria on which a defendant’s bad character can be admissible are where - (7 gateways):

Answer 128

(a) – all parties to the proceedings agree to the evidence being admissible. (b) – evidence is adduced by the defendant himself or given in an answer to a question asked by him in cross examination and intended to elicit it. (c) – evidence is important explanatory evidence, in that the court would find it impossible or difficult to properly understand other evidence in the case, or where the value for understanding the case, a whole was substantial. (d) – evidence is relevant to an important matter in issue between the defendant and the prosecution regarding the propensity of the defendant either – Commit the offences with which he is charged OR to be truthful. (e) – evidence has substantial probative value regarding an important matter in issue between the defendant and a co-defendant. (f) – it is evidence to correct a false impression given by the defendant. (g) – defendant has made an attack on another person’s character.

Question 129

If the bad character is deemed admissible, defendant can?

Answer 129

apply to have his bad character excluded on specific grounds.

Question 130

Under the Criminal Procedure Rules?

Answer 130

a prosecutor or co-defendant who wants to introduce such evidence MUST serve a notice on the court officer and each other party.

Question 131

Prosecutor MUST serve any such notice not more than:

Answer 131

MC – 28 days after the defendant pleads not guilty. CC – 14 days after the defendant pleads not guilty.

Question 132

Co-defendant must serve any such notice:

Answer 132

As soon as reasonably practicable, and in any event. Not more than 14 days after the prosecutor discloses material on which notice is based.

Question 133

Party objects to the application to introduce bad character evidence identified in such a notice, he must?

Answer 133

apply to the court to determine the object AND serve the application on the court officer and each other party, not more than 14 days after service of the notice.

Question 134

In the application, a party must explain (if applicable):

Answer 134

Which if any, facts of the misconduct set out in the notice that party disputes. What if any, facts of the misconduct that party admits instead. Why the evidence is not admissible. Why it would be unfair to admit the evidence. Any other objections to the notice.

Question 135

Defendant who wants to introduce evidence of his/her own bad character must: and CC at the same time give notice...

Answer 135

Give notice, in writing or orally: As soon as reasonably practicable, and in any event. Before the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness to obtain that evidence. (in writing, or orally) of any direction about the defendant’s character that the defendant wants the court to give the jury.

Question 136

s.101(3) CJA 2003?

Answer 136

defendant can apply to exclude evidence of his bad character under either section 101(1)(d) or (g), where it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 137

s.78 PACE 1984 allows defence lawyers to?

Answer 137

challenge the admission of prosecution evidence.

Question 138

s.78?

Answer 138

in any proceedings the court CAN refuse to allow evidence on which the prosecution proposes to rely on to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness on the proceedings that the court ought not to admit it.

Question 139

s.78 gives the judge a broad discretion to?

Answer 139

exclude evidence even where the evidence is capable of being excluded under other provisions.

Question 140

No legal definition of fairness?

Answer 140

proceedings should be free from injustice or unfair prejudice.

Question 141

Procedural impropriety doesn’t render...

Answer 141

evidence automatically inadmissible.

Question 142

Criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –

Answer 142

Important explanatory evidence.

Question 143

Substantial probative value regarding -

Answer 143

a matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole, OR All of the parties to the proceedings agree to the evidence being admissible.

Question 144

Prosecution opening:

Answer 144

Prosecution will deliver an opening speech to the jury setting out the facts of the case, the relevant law, and the witnesses the prosecution will call.

Question 145

Prosecution case:

Answer 145

Each prosecution witness will then be called in turn to give evidence. Witnesses will be examined in chief by the prosecuting advocate and then cross-examined by the defendant’s advocate. Examination-in-chief – witness telling his story. Leading questions aren’t permitted. Purpose of cross-examination is to test the witness’s evidence and to put the other party’s case to the witness. Brief re-examination of the witness is permitted after cross-examination.

Question 146

Voir Dire (trial within a trial):

Answer 146

These hearings will take place in the absence of a jury where there are disputes as to the admissibility of evidence on which the prosecution seeks to rely.

Question 147

Submission of no case to answer:

Answer 147

At the close of the prosecution case, the defendant’s advocate CAN make a submission of no case to answer. Successful, end the trial.

Question 148

Defence opening:

Answer 148

Submission of no case to answer is unsuccessful, defendant’s advocate will present the defendant’s case.

Question 149

Defence case:

Answer 149

Witnesses for the defence will be called to give their evidence, starting with the defendant (if he is to give evidence).

Question 150

Closing speeches:

Answer 150

Both the prosecution’s advocate and the defendant’s advocate will deliver a closing speech to the jury.

Question 151

Prosecution closing speech:

Answer 151

Prosecution’s advocate will deliver his speech first.

Question 152

Defence closing speech:

Answer 152

Defendant’s advocate will then sum up the case from the defendant’s perspective and highlight any weaknesses in the prosecution’s case.

Question 153

Summing up by the judge:

Answer 153

Trial judge will then sum up the issues of fact that the jury has to decide on and summarise the arguments of both sides.

Question 154

Retirement of jury and verdict:

Answer 154

Jury will then retire to consider their verdict. Deliberations of the jury MUST be kept private. Jury should reach a unanimous verdict, although a majority verdict of 11:1 or 10:2 may be accepted if, after at least two hours and ten minutes, a unanimous verdict is not possible. For the jury to reach a guilty verdict, prosecution must convince the jury beyond reasonable doubt that the defendant committed the relevant offence or offences. Verdict is not guilty; defendant is free to leave the court. Guilty verdict is reached, judge CAN sentence the defendant immediately or, if necessary, adjourn the proceedings to enable pre-sentence reports to be prepared.

Question 155

Trial procedure in the MC: Summary trial procedure -

Answer 155

Similar to the procedure before the CC, except – No jury No closing speech by the prosecution’s advocate. At the end of the trial, a closing speech by the defendant’s advocate. Magistrates will retire to consider their verdict.

Question 156

Modes of address and court room etiquette - MC:

Answer 156

lay magistrate (sir/madam or your worships) district judge (sir/madam)

Question 157

Modes of address and court room etiquette - CC:

Answer 157

circuit judge (your honour) HC judge (my lord/my lady)

Question 158

Leading question?

Answer 158

question that suggests an answer.

Question 159

non-leading question?

Answer 159

an open question which doesn’t suggest an answer.

Question 160

Examination-in-chief/re-examination - which questions can't be asked?

Answer 160

leading questions CAN’T be asked.

Question 161

Cross-examination - which questions can be asked?

Answer 161

leading, or closed questions are allowed.

Question 162

s.53(1), youth justice and Criminal and Evidence Act 1999?

Answer 162

at every stage of criminal proceedings all persons are (whatever their age) competent to give evidence.

Question 163

s.53(3), youth justice and Criminal and Evidence Act 1999?

Answer 163

person is not competent to give evidence in criminal proceedings if it appears that he is not able to: understand the question put to him AND give answers to them which can be understood.

Question 164

s.53(3), youth justice and Criminal and Evidence Act 1999 - these exceptions normally apply to?

Answer 164

children and those with a mental disability.

Question 165

Witness is compellable if he CAN?

Answer 165

lawfully be required to give evidence.

Question 166

Witness who is compellable BUT?

Answer 166

not willing can be issued with a witness summons to attend court and give evidence.

Question 167

The only witnesses who are not compellable are:

Answer 167

Defendant in their own defence (though adverse inferences CAN be drawn). Defendant for a co-defendant. Defendant’s spouse or civil partner who CAN’T be compelled to give evidence against their accused spouse UNLESS the defendant is charged with a specified offence (s.80(3) PACE 1984).

Question 168

Special measures are available to?

Answer 168

vulnerable or intimidated witnesses who have difficulty in giving evidence in criminal proceedings or are reluctant to do so.

Question 169

Following witnesses CAN apply to the court for special measures:

Answer 169

Children under the age of 18. Persons suffering from a mental or physical disorder or impairment. Persons whose evidence is likely to be affected by fear or distress. Complaints in sexual offenders. Witnesses to certain gun and knife crimes.

Question 170

Special measures that can be used for a witness include:

Answer 170

Screening from the defendant Evidence by live link Evidence given in private Video recording of the evidence-in-chief Video recording of the cross examination and re-examination Examination of a witness through an intermediary e.g., an interpreter. Aids to communication

Question 171

Only special measure available to a defendant is?

Answer 171

the use of a live link when giving evidence.

Question 172

Principle 1, SRA Code of Conduct:

Answer 172

uphold the value of law and the proper administration of justice.

Question 173

Standard 1.4, SRA Code of Conduct:

Answer 173

an overriding duty not to mislead the court.

Question 174

Standard 6.3, SRA Code of Conduct:

Answer 174

duty of confidentiality to their client.

Question 175

Criminal Procedure Rule and PD require that...

Answer 175

the parties help the court to further the overriding objective.

Question 176

Overriding objective is dealing with a case justly and at proportionate cost in so far as is practicable:

Answer 176

Ensuring that the parties are on equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. Saving expense. Dealing with the case in ways which are proportionate – To the amount of money involved. Importance of the case. Complexity of the issues And financial position of each party.

Question 177

Ensuring that it is dealt with expeditiously and?

Answer 177

fairly

Question 178

Allotting to it an appropriate share of the court’s resources, while taking into account?

Answer 178

the need to allot resources to other cases.

Question 179

Enforcing compliance with?

Answer 179

rules, PDs, and orders.