Untitled spreadsheet - Sheet1-5 Flashcards
(376 cards)
1
Q
PACE: role of solicitor in the police station
A
To protect and advance the legal rights of their client
2
Q
Is a person under the influence of drink or drugs a vulnerable client?
A
no
3
Q
Who is a vulnerable client?
A
Person who, because of mental health condition or disorder, may have difficulty understanding or communicating effectively about the full implications for them, does not appear to understand the significance of what they are told, of questions asked or replies, or appears particularly prone to confusion/unreliable info/acting on suggestions without consciously wishing to do so/readily agreeing to suggestions without protest or question
4
Q
What is the role of the appropriate adult?
A
Ensure detained person understands what is happening and why, support advise & assist detained person, observe whether police acting properly, assist with communication between detained person and police, ensure detained person understands their rights
5
Q
Who can act as an appropriate adult?
A
Parent, guardian, relative, someone experienced in dealing with such persons
6
Q
Circumstances where vulnerable person can be interviewed without appropriate adult?
A
Superintendent or above satisfied interview would not significantly harm persons physical or mental state & delay would lead to interference w evidence, interference w other persons, serious loss or damage to property, alerting other suspects, hindering recovery of property
7
Q
3 options in police interview for client
A
Answer questions, ‘no comment’, provide written statement & ‘no comment’
8
Q
Should you advise client to give mixed interview and why?
A
No - transcript will be read in court whereas ‘no comment’ throughout will not be read
9
Q
How much info should be disclosed before interview and consequences of failure to do so?
A
Sufficient info that solicitor can understand the nature of any offence & why client is suspected of committing it. If insufficient info then may be good reason to advise client to remain silent. Courts are reluctant to draw inferences where disclosure was insufficent.
10
Q
Consequences of waiting until trial to put forward a defence
A
Adverse inferences, losing credibility
11
Q
Can court draw inferences from silence where suspects condition gives lawyer a cause for concern?
A
No
12
Q
What if defendant later relies on a fact in defence that was not offered at the time of questioning?
A
The court can draw an inference from this.
13
Q
Can an inference be drawn if a suspect is not cautioned?
A
No
14
Q
Circumstances affecting whether it was reasonable at the time to mention a fact (if later rely on it)
A
disclosure that has been made by the police, what info the prosecution can demonstrate suspect knowing, condition & circumstances of the suspect, any legal advice that the suspect received
15
Q
Can an inference be drawn if suspect fails to account for object, substance or mark found on them at time of arrest?
A
Yes
16
Q
What section CJPOA is general inference for failing to mention fact relied on in defence?
A
s34
17
Q
What section CJPOA is inference for failing to account for a mark, object etc?
A
s36
18
Q
Can an inference be drawn if suspect fails to account for their presence on arrest at a particular place?
A
Yes
19
Q
What section CJPOA is inference for failure to account for presence at place of arrest?
A
s37
20
Q
Requirements for ‘special warning’ before inference can be drawn regarding object, substance or mark or presence at particular place
A
What offence is being investigated, what fact they are being asked to account for, this fact may be due to them taking part in commission of offence, court may draw proper inference if fail or refuse to account for this fact, and a record is being made of an interview and may be given in evidence at trial
21
Q
Can a defendant be convicted solely based on an adverse inference?
A
No
22
Q
Is an adverse inference relevant if there is no trial?
A
No
23
Q
What can happen to eye-witness if suspect’s identity is not known to the police?
A
Eye-witness may be taken to particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion, can be shown photographs
24
Q
When must an identification procedure be held?
A
When offence has been witnessed and eye-witness: has identified or purported to identify a witness, or is available who expresses ability to identify suspect, or has a reasonable chance of being able to identify the suspect. Where the suspect disputes being the person the eye-witness claims to have seen
25
When does identification procedure not have to be held?
If it is not practicable or would serve no useful purpose in proving or disproving suspect was involved
26
Identification procedures that may be used if suspect's identity is known to police & they are available?
Video identification, identification parade, group identification (informal group of people)
27
What minimum rank for identification officer?
Inspector
28
Situations where not necessary to first invite suspect to participate in video identification procedure?
Video identification procedure is not practicable or identification parade is more suitable
29
When can covert identification procedures be used?
As a last resort and only if all other procedures have been considered and refused
30
Formalities for identification procedure?
Record shall be made of description of suspect as first given by eye-witness, copy of record given to suspect or solicitor before identification procedures carried out, notice given to suspect, suspect invited to participate in video identification procedure
31
What must be explained in notice to suspect before video identification procedure?
Purpose of the procedure, entitlement to free legal advice, procedures for holding it, inc right to have solicitor or friend present, that they do not have to consent or co-operate in the procedure, that if they do not consent/cooperate in procedure their refusal may be given in evidence in any subsequent trial and police may proceed covertly
32
How does video identification procedure work?
Suspect is filmed, then select lookalikes from VIPER system and suspect placed amongst at least 8 other individuals. Suspect, solicitor or friend must be given reasonable opportunity to see complete set of images before shown to eye-witnesses, can state reasons for reasonable objection to clips
33
When can suspect's solicitor be present at video identification procedure?
On request and with prior agreement of identification officer
34
When can suspect's solicitor be present at identification parade?
Suspect must be given reasonable opportunity to have solicitor or friend present
35
How many people must participate in identification parade?
At least 8
36
Suitable location for group identification procedure?
Where other people are passing or waiting around informally, in groups such that suspect can joint them
37
Normal procedure for confrontation by eye-witness?
Eye-witness must be told that person they saw on specified earlier occasion may or may not be the person they are to confront and if not then should say so. Confrontation normally happens in police station.
38
Remedy for breach of Code D?
For defendant to apply to exclude evidence obtained in breach of code D. Judge then decides whether there has been significant prejudice to the accused.
39
Who makes charging decisions for indictable-only offences?
Crown Prosecutor
40
If decision to charge is one for the police, who makes the decisions?
Custody officer
41
How to serve written charge & requisition?
Must be served on person charged and on magistrates' court at which person is to attend.
42
Process of laying an information?
Prosecutor serves an information alleging offence on magistrates' court, court issues a summons or arrest warrant requiring accused to attend
43
What must written charge or information contain?
Statement of offence which describes it in ordinary language, reference to statutory provision that creates the offence, sufficient particulars of conduct complained of for accused to know what is alleged
44
What must summons or requisition include?
Notice setting out when & where accused is required to attend court, specify each offence in respect of which it has been issued
45
Timing within which charge must be brought for summary only offence?
Information must be laid or complaint made within 6 months of date of alleged offence
46
When can person arrested be taken to a place other than police station following arrest?
When it is necessary to carry out such investigations as it is reasonable to carry out immediately, e.g. being searched, being taken to premises being searched, being taken to a place to check alibi
47
Which police stations can person arrested be taken to?
Any police station unless the detention will be over 6 hours, then it must be the designated police station
48
What minimum rank is necessary to be a Custody Officer?
Sergeant
49
Who can authorise detention of a suspect?
Custody Officer. If not available then any other officer but must not normally be involved in investigation of the offence for which the person is in detention
50
What does custody officer do if there are grounds to detain the suspect?
Authorise detention, open a custody record, inform detainee of reason for their arrest, inform detainee of reason for their detention, advise detainee of their rights
51
When does custody record have to be opened?
As soon as practicable for each detainee
52
What information has to be recorded in custody record?
Requirement to inform person of reason for arrest, circumstances of arrest, why arrest was necessary, any comments made by arrested person
53
When can solicitor consult the custody record?
As soon as practicable after arriving and any time during client's detention
54
Who can be a Review officer?
Rank of at least inspector who is not connected with the investigation and not custody officer
55
When does review of detention have to happen?
Not more than 6 hours after detention is first authorised and periodically every 9 hours after
56
What is general detention time limit?
24 hours after the 'relevant time'
57
When is the 'relevant time'?
Moment suspect arrives at police station - indicated on custody record
58
Who can authorise extension of a further 12 hours detention after usual 24?
Officer of at least rank of superintendent
59
Criteria for extension of detention for a further 12 hours?
the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning; the offence is an indictable offence; the investigation must be conducted diligently and expeditiously
60
When does extension of detention for further 12 hours have to happen?
Before expiry of initial 24 hours but after the second review has occurred
61
How to detain someone beyond 36 hours?
Must apply to Magistrates court for warrant of further detention
62
3 continuing rights that can be exercised at any point during custody?
Right to consult privately with a solicitor, right to have someone informed of their arrest, right to consult the COP
63
When does suspect have to be informed of their right to free legal advice?
Before commencement or recommencement of interview, before being asked to provide an intimate sample, before having an intimate drug search, before an identification parade or video identification procedure
64
Who can give authority to delay the right to legal advice?
Officer of at least superintendent
65
Grounds for delaying the right to legal advice?
o Superintendent has reasonable grounds to believe exercise of right will lead to any or all of following: Interference with/harm to evidence connected with indictable offence; Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence
66
How long can right to free legal advice be delayed for?
Maximum 36 hours
67
When can the right to have someone informed of your arrest be exercised?
Every time the suspect is taken to a different police station
68
Who can delay the suspect's right to have someone informed of arrest?
Officer of at least inspector
69
Grounds for delaying right to have someone informed of arrest?
Inspector has reasonable grounds to believe exercise will lead to following: interference with/harm to evidence connected with indictable offence; Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence
70
How long can suspect's right to have someone informed of their arrest be delayed for?
Maximum 36 hours
71
Who can act as an appropriate adult for a young detainee?
Parent or guardian
72
Who can act as an appropriate adult for a young person looked after under the Children Act 1989
Representative of care authority or voluntary organisation, social worker, if not: any person aged 18 or over who is not police officer/employee
73
Who can act as appropriate adult for a mentally vulnerable detainee?
Parent, guardian, relative, someone with experience dealing with such persons, must be over 18 and not police employee
74
Who cannot act as an appropriate adult?
Solicitor/legal representative, someone suspected of involvement in the offence, victim or witness of offence, someone involved in the investigation, someone who has received admissions from the detainee before, someone of low IQ or unable to appreciate gravity of situation, estranged parent who arrested juvenile specifically objects to
75
When can you proceed without an appropriate adult?
Where delay would be likely to lead to: o Interference with/harm to evidence connected with indictable offence: Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence
76
Who can authorise interview without an interpreter?
Officer of rank of superintendent or above
77
Which section of PACE governs interviews?
COP C paras 11 & 12
78
When should person be cautioned?
Before they are asked any questions about suspected involvement in the offence, and again at recommencement of interview after a break
79
Where should interview happen?
At police station or other authorised place of detention except in certain circumstances
80
How much disclosure should solicitor be given?
Sufficient information to enable them to understand the nature of any such offence and why the client is suspected of committing it
81
What has to be disclosed?
Custody record and a significant statement
82
How must interviews under caution for an indictable offence be recorded?
Audio recorded
83
When should detainee not be interviewed?
If they are unable to appreciate the significance of the questions & answers, or if they are unable to understand what is happening because of drink, drugs, illness, ailment, condition
84
Who can authorise interview when detainee should not normally be interviewed?
Superintendent
85
Are confessions admissible?
As a starting point yes
86
When are confessions not admissible?
When it has been obtained as a result of oppression, or when it would have an adverse effect on the fairness of the proceedings
87
What are Argent factors?
Formal conditions that must be satisfied before adverse inference can be drawn: 1. must be proceedings against person for an offence, 2. alleged failure to mention fact at trial must have occurred before charge or on charge, 3. alleged failure must have occurred during questioning under caution, 4. questioning must have been directed to trying to discover whether or by whom allaged offence was committed, 5. alleged failure of accused must have been to mention any fact relied on in defence in those proceedings; 6. alleged failure must have been to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention
88
Can suspect refuse an ID procedure?
Yes but police will do covert procedure (do it anyway) and also suspect will get adverse inference if case goes to trial
89
When must first hearing happen if D is on bail & prosecutor anticipates guilty plea which is likely to be sentenced in Mags?
Within 14 days of being charged
90
When must first hearing happen if D is on bail & likely to plead not guilty or case is likely to go to Crown Court?
Within 28 days of being charged
91
When must first hearing happen if D was detained in police custody following charge?
Must be brought before the next available court
92
What happens if D was bailed by fails to attend court for first hearing?
Court can issue a warrant for D's arrest
93
What happens if D fails to appear at court if summonsed to court?
No offence committed - case can proceed in absence of D
94
When must prosecution serve initial details on the court officer?
As soon as practicable and in any event no later than beginning of day of first hearing
95
When must prosecution give initial details to D if D requests them?
As soon as practicable and in any event no later than beginning of day of first hearing
96
What must be included in initial details of prosecution?
Summary of circumstances of offence; any account given by D in interview; any written statements & exhibits that are available and material to plea and or mode of trial or sentence; victim impact statements; D's criminal record
97
What must be included in initial details of prosecution if D was in police custody immediately before first hearing?
Summary of circumstances of offence; D's criminal record
98
When can a summary only offence go to the Crown Court?
When D charged with an indictable offence and there is a summary only offence which is connected
99
What happens if D indicates guilty plea at plea before venue?
Court treats it as formal plea of guilty & proceeds to sentence
100
When should Mags order a pre-sentence report?
There is a realistic alternative to custodial sentence; D may be dangerous offender; there is some other appropriate reason
101
What happens if D indicates not guilty plea at plea before venue?
Court moves on to consider where trial will be held = allocation
102
What does prosecution do at allocation hearing?
Opens with facts; outlines D's offending history; makes submissions as to where trial should be held consistent with allocation guidelines
103
What does defence do at allocation hearing?
Can make submissions as to venue if disagree with Prosecution
104
What happens if D asks for an indication of sentence if they were to plead guilty?
Court has discretion as to whether they will give an indication, can decline, must be confined to telling D whether sentence would be custodial or non-custodial
105
Who applies to have the D remanded into custody?
Prosecution
106
Who applies for bail and when?
Defence applies for bail once a prosecution objection to bail has been raised
107
Who does right to bail not apply to?
Those appealing conviction or sentence; or D's being committed for sentence from Mags to Crown Court
108
What are 3 primary grounds for objecting to bail for indictable offences?
Substantial grounds for believing that D would either:
109
When should bail not be removed under one of big three grounds for objection?
Where there are no real prospects of defendant receiving a custodial sentence
110
When do grounds for objection to bail become available for summary offences?
If D's behaviour on bail suggests they might abscond/interfere with witnesses and has a history of breaching bail conditions
111
3 grounds for 'need not be granted bail'?
A remand in custody would be for D's own protection; court has insufficient information to deal with issue of bail; D is already serving a sentence in custody
112
What are 2 groups of specialist grounds for objecting to bail?
Serious cases with high penalties and cases of particular nature that affect assessment of risk posed by D on bail
113
What are 4 groups of offences for grounds for objecting to bail?
Serious cases where it is harder to get bail because of gravity of consequences; cases of particular character (drugs or domestic violence) where particular approach needs to be taken because of behavioural difficulties; cases where D infringes bail; remaining cases dealt with in relation to classification
114
What happens if D charged with murder and has a previous conviction for murder, attempted, rape or serious sexual offence?
D may not be granted bail unless there are exceptional circumstances to justify it
115
What happens if D charged with offence carrying life imprisonment and was either already on bail or fails to attend having been on bail?
D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend
116
When can D not be granted bail if charged with an offence against partner/family?
If court believes there are substantial grounds to believe D would commit an offence on bail by engaging in conduct that would cause physical/mental injury to an associated person?
117
When can D not be granted bail if charged with abuse of drugs?
Court may not grant bail unless there is no significant risk of D committing an offence on bail
118
What happens if D absconds whilst on bail for indictable offence?
Bail need not be granted against unless it is prior to conviction and there are no realistic prospects of D receiving custodial sentence
119
Factors to consider when considering grounds for objection to bail?
The nature & seriousness of the offence and the likely sentence; Character of D, D's antecedents, associations & community ties; D's bail record in the past; the strength of the evidence
120
What is surety?
Offer of money made by someone with influence over D to secure D's return to court (pay if D does not show up)
121
What is security?
D or someone on D's behalf putting up money or other valuable to be forfeited if D does not attend court
122
Who can make an application to vary bail conditions?
Prosecution or defence
123
What is general rule for bail attempts?
Can have 2 attempts at getting bail (and 1 in Crown Court)
124
How many times can D apply for bail in Mags court?
1. Apply at first hearing
125
When does Crown Court hear bail appeal in urgent cases?
No later than one business day after appropriate notice is served
126
How many times can D apply for bail in Crown Court?
1. Apply at first hearing
127
Custody time limit for trials in Mags of summary or either-way offences?
56 days
128
Custody time limit for trials in Crown Court of indictable or either-way offences?
182 days less any days spent in custody prior to case being sent to Crown Court
129
When is the start of the trial in the Mags court (for time limit purposes)?
When the court begins hearing evidence from the prosecution
130
When is the start of the trial in the Crown Court (for time limit purposes)?
When the jury is worn
131
How long must remand be if D remanded into custody at first hearing & trial is in Mags?
First remand no more than 8 clear days
132
How often must D be brought back to court after second appearance?
Every 28 days or fewer (but this can be done in their absence)
133
What must prosecution show to apply to extend the custody time limit?
It has acted with all due diligence and expedition and there is good & sufficient cause to have D further remanded into custody
134
If D is having trial at Mags & unsuccessful applying for bail at first appearance, when can issue of bail be raised for a second time?
Automatically has 2nd application at 2nd appearance in 1 week
135
How quickly is a prosecution appeal against bail heard by the court?
Within 48 hours excluding weekends
136
Whose instructions can solicitor act on?
Only instructions from the client or someone properly authorised to give instructions on their behalf
137
What is overriding objective of criminal procedure rules?
The overriding objective of this new code is that criminal cases be dealt with justly
138
Who can seek a direction from the court?
Any party
139
What are possible sanctions for non-compliance with court directions?
Fix, postpone, bring forward, extend, cancel or adjourn a hearing
140
What classification is assault?
Summary only
141
What classification is battery?
Summary only
142
What classification is simple criminal damage worth 5k or less?
Summary only
143
What classification is attempt to commit simple criminal damage of 5k or less?
Summary only
144
What classification is theft?
Either way
145
What classification is burglary?
Either way
146
What classification is fraud?
Either way
147
What classification is AOABH?
Either way
148
What classification is wounding or inflicting GBH (s20)?
Either way
149
What classification is simple criminal damage over 5k?
Either way
150
What classification is simple arson?
Either way
151
What classification is robbery?
Indictable only
152
What classification is wounding or causing GBH with intent (s18)?
Indictable only
153
What classification is aggravated burglary?
Indictable only
154
What classification is aggravated arson?
Indictable only
155
What classification is aggravated criminal damage?
Indictable only
156
What classification is murder/voluntary manslaughter?
Indictable only
157
What classification is involuntary manslaughter?
Indictable only
158
When are pre-trial matters resolved?
Most cases at first hearing, or pre-trial hearing (PTPH) for complex/Crown court cases
159
2 parts of PTPH?
Plea stage and Trial Preparation or Sentencing stage
160
When must defence make application to dismiss charges?
After D is sent for trial to the Crown Court from the Mags. Only after D has been served with the evidence relating to the offence and only before D is arraigned
161
What is an arraignment?
When defendant enters plea for each count on the indictment
162
What happens at PTPH if D is unfit to plead?
No plea is taken, but trial preparation stage does need to happen.
163
What happens at trial preparation stage of PTPH?
Trial date; Prosecution confirm if served all evidence; directions for expert evidence; defence informs prosecution of which witnesses need to give evidence
164
4 Ways evidence can be established?
Witness giving live evidence; agreeing a witness statement as true by the consent of the parties; agreeing any fact between the parties; judge or jury take 'judicial notice' of the fact
165
How to consider if evidence is admissible?
1. Relevant to a fact in issue; 2. Is it subject to an exclusionary rule?; 3. Does it have sufficient weight?
166
What is the general rule for bad character evidence?
Generally inadmissible unless inclusionary rule applies
167
Requirement for breach of s78 PACE for court to exclude evidence?
Breach (wrongly obtained) must have been 'significant and substantial'
168
What is common law rule for exclusion of evidence?
Does the evidence do more harm than good in assisting tribunal of fact to reach a decision on the issues?
169
When should judge dismiss the charge? (+ what case does it come from?)
R v Galbraith: if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted
170
When is submission of no case to answer made? & how is it made?
At the end of the prosecution case, made in absence of the jury
171
What does defence apply for in an abuse of process application?
Applies to stay proceedings
172
What is s78 application?
Application to exclude evidence which prosecution proposes to rely on because it is unfair
173
Key test for court in deciding whether to exclude prosecution evidence under s78?
Whether 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
174
When can s78 application be made?
Before the trial; at the commencement of trial; just prior to prosecution seeking to admit the evidence
175
What is voir dire?
Mini-trial within trial relating to matters in dispute. In Crown Court happens without the jury.
176
Two main ways to challenge a confession under s76?
s76(2)(a): exclusion for 'oppression'; s76(2)(b): anything said or done which was likely in the circumstances to render confession unreliable
177
What is included in definition of 'oppression' for s76 application?
Torture, inhuman or degrading treatment, use of threat of violence
178
When must evidence be excluded for oppression under s76?
If prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression
179
What is definition of confession?
Any statement wholly or partly adverse to the suspect
180
What is correct approach to exclude evidence for unreliability under s76?
Identify thing said or done which requires judge to take into account everything said & done by the police; was it likely to render confession unreliable - objective test?; has prosecution proved beyond reasonable doubt that confession was not obtained in consequence of thing said or done - question of fact
181
Can you seek to exclude confession under s76 and s78?
Yes (s78 as alternative)
182
What level of disclosure is required from the prosecution?
Full and proper disclosure
183
4 stages of disclosure?
1. Investigation stage (duty to record & retain material during investigation); 2. initial duty of disclosure on the prosecution; 3. defence disclosure; 4. continuing duty on prosecution to keep disclosure under review
184
How long does duty to retain material last?
At least until decision taken whether to institute proceedings. If proceedings commenced then duty lasts until D is convicted or acquitted
185
How long must relevant material be retained if D is convicted?
At least until D is released from custody; or if not custodial sentence then until after 6 months from date of conviction
186
What must disclosure officer do to unused material?
Ensure it is clearly listed & brought to the attention of the prosecutor
187
When must prosecution serve disclosure of unused material?
If it is capable of assisting defence or harming prosecution case
188
What is defence disclosure?
s5 CPIA imposes duty on D in Crown Court to serve defence statement on the court & prosecution
189
What is time limit for disclosure of defence statement in Crown Court?
Must be served on prosecution & Crown Court within 28 days of prosecution complying with its duty of initial disclosure (schedule of unused). Can be extended but only if application to extend is made within the time limit & would be unreasonable to make them give statement within 28 days
190
What is time limit for disclosure of defence statement in Mags Court?
Not compulsory but if choose to serve one then must be within 10 business days/14 days of prosecution complying with initial duty of disclosure
191
When must Notice of Intention to call Defence Witnesses be given?
Within 10 business days (Mags) and 28 days (Crown) of prosecution complying with initial disclosure
192
What are consequences of defence disclosure failure?
Jury may draw such adverse inferences as appear proper. Prosecution may comment on failure. No inferences can be drawn in Mags court unless D decides to serve defence statement & then fails to do so in time, but D will not be able to make application for specific disclosure.
193
What are the consequences of prosecution disclosure failure?
D could bring application to stay indictment on ground that continuing would be abuse of process; could result in conviction being quashed on appeal; likely to result in delay & wasted costs; potentially result in exclusion of evidence due to unfairness
194
What is public interest immunity?
Prosecution must make this application if it does not wish to disclose some material because to do so would give rise to real risk of serious prejudice to important public interest
195
What is overriding objective in criminal cases?
That criminal cases be dealt with justly
196
When must evidence be served on the defence if D is in custody?
50 days of date on which sent to Crown court
197
When must evidence be served on the defence if D is not in custody?
70 days of date on which sent to Crown court
198
What is the evidential burden?
The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury
199
Where does burden of proof lie for defence of duress?
Prosecution must disprove it beyond reasonable doubt
200
Where does burden of proof lie for alibi?
Prosecution must disprove it so jury are sure
201
When should a Turnbull direction be given?
When the case against the accused depends 'wholly or substantially' on the correctness of the visual identification
202
3 elements to Turnbull warning?
Instruct jury as to reason for needing a warning; direct jury to examine circumstances in which identification came to be made; remind jury of any specific weaknesses in identification evidence
203
Questions judge must answer for visual identification evidence?
What is the quality of the identification evidence? Is there other evidence to support the correctness of the identification?
204
Mnemonic for required checks for Turnbull guidelines?
ADVOKATE
205
What is standard time limit for defence skeleton argument?
At least 10 business days before trial
206
What is standard time limit for prosecution response to defence skeleton argument?
5 business days after skeleton
207
What is test for no case to answer?
Prosecution evidence is insufficient for any reasonable court properly to convict
208
Does defendant have to give evidence?
No but failure to do so can lead to adverse inferences being drawn
209
When is jury majority verdict permitted?
If they have deliberated for at least 2 hours 10 mins
210
What conduct is specifically excluded by s98 bad character?
Misconduct which has to do with the alleged facts of the offence with which the defendant is charged or is committed in connection with the investigation or prosecution of that offence
211
Where to find gateways for admissibility of bad character evidence?
s101 CJA
212
What are 7 gateways mnemonic for admissibility of bad character evidence?
ABCDEFG: Agreement; Blurts it out; Context; Done it before ; 'E did it; False impression; Gets at the witness
213
7 gateways for bad character evidence?
a) All parties agree
214
What is gateway for 'done it before'?
d: relevant to an important issue between prosecution & defence: propensity to commit such offences
215
Is leave of the court required to put forward bad character evidence adducted by the defendant?
No
216
Is leave of the court required to put forward bad character evidence that is important explanatory evidence?
Yes
217
When is evidence of co-defendant's propensity to be untruthful admissible?
Where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence
218
Is leave of the court required to put forward bad character evidence that is important matter in issue between defendant and co-defendant?
Yes
219
Is leave of the court required to put forward bad character evidence that is correcting a false impression given by the defendant?
Yes
220
Is leave of the court required to put forward bad character evidence that is an attack on another person's character?
Yes + fairness test applies
221
How should jury be directed re bad character evidence?
Not to place too much reliance on bad character evidence; cannot be used to bolster a weak case or prejudice jury against defendant.
222
What is fairness test for admissibility of bad character evidence?
Should not be admitted if it appears to the court that it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it
223
Which gateways of bad character evidence uses fairness test?
d & g
224
What is the effect of s110 CJA on bad character evidence?
Requires court to give reasons in open court for any ruling it makes on the issue of bad character
225
What is the effect of s107 CJA on bad character evidence?
Gives court discretion to stop case after prosecution has finished where bad character evidence is contaminated such that conviction would be unsafe
226
What is procedure for adducing bad character evidence?
For non-defendant bad character must make an application under rule 21.3 or for defendant bad character must give notice under rule 21.4
227
What is time limit for prosecution to give notice for defendant bad character evidence in Mags court?
Not more than 20 business days after defendant pleads not guilty
228
What is time limit for prosecution to give notice for defendant bad character evidence in the Crown Court?
Not more than 10 business days after defendant pleads not guilty
229
What is time limit for notice for co-defendant evidence of bad character to be given?
As soon as reasonably practicable, in any event not more than 10 business days after prosecutor discloses the material on which the notice is based
230
When must response for defendant bad character evidence notice be given?
Not more than 10 business days after service of the notice
231
Which categories of witnesses are eligible for special measures?
All witnesses under 18; witnesses with mental disorder or physical disorder where court considers will diminish quality of evidence; witnesses in fear or distress & court satisfied; all adult complainants of sexual offences; all adult complainants in certain offences under Modern Slavery Act; all witnesses in case involving a 'relevant offence' which are serious offences involving homicide, firearms, knives
232
Additional types of special measures that can be introduced?
Witness anonymity orders, automatic anonymity of complainants in sex cases, prohibition of cross examination by defendants in person of complainants in sex cases & child witnesses in certain cases, restricting reporting of witnesses' identity
233
What is the test for party seeking to issue a witness summons?
The witness is likely to be able to give evidence that is likely to be amterial evidence; and it is in the interests of justice to issue a summons
234
When can defendant change their plea from not guilty to guilty?
Any time before the jury return their verdict
235
When can defendant change their plea from guilty to not guilty?
Any time before they are sentenced (but this is more difficult)
236
What is definition of hearsay?
A statement made out of court that is repeated in court w/o person who made it being there
237
What is rule against hearsay?
A statement made out of court may not be presented in evidence as proof of its contents (hearsay generally inadmissible)
238
What is test for potential hearsay?
Does the evidence fall within definition of 'hearsay evidence'? If yes then prima facie inadmissible. Does it fall within one of the exceptions to the general rule?
239
What is RvTwist test for hearsay?
1. Identify what relevant matter is sought to prove.
240
Is CCTV hearsay?
No
241
Are questions hearsay?
No
242
What are exceptions to the rule against hearsay in CJA 2003?
Hearsay may be admissible if the witness is unavailable; it is a business document; or it is in the interests of justice to admit it
243
What are conditions where exception to rule against hearsay applies because of an unavailable witness?
Witness is dead; unfitness to be a witness; outside the UK & attendance is not reasonably practicable; Cannot be found after reasonably practicable steps; Fear (widely construed)
244
What must be satisfied for fear exception to hearsay to be allowed?
Causative link between fear and failure to give evidence must be established
245
What are common law exceptions to the rule against hearsay?
Public information; evidence of reputation; Res gestae; Confessions; Statements in furtherance of common enterprise; Body of expertise
246
What is included in admissible public information?
Published works dealing with matters of a public nature; public documents such as registers; records such as court records and public treaties
247
What is rule of Res Gestae?
Statement is admissible if: statement made by a person so emotionally overpowers by an event that the possibility of concoction or distortion can be disregarded; statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; statement relates to physical sensation or mental state
248
What are statutory exceptions to rule against hearsay re previous statements?
Previous inconsistent statements that witness admits/is proved to have made is admissible as evidence.
249
What is rule re multiple hearsay?
Hearsay statement is not admissible to prove that an earlier hearsay statement was made, unless either of statements is admissible under ss117, 119 or 120, all parties agree, or court is satisfied that it is in the interests of justice
250
What are judges powers re unconvincing hearsay?
Judge is able to stop a case where it depends wholly or partly on hearsay evidence which is so unconvincing that, considering its importance to the case against the defendant, the defendant's conviction would be unsafe
251
What are court's powers re superfluous hearsay?
Court can exclude hearsay evidence where admission would result in an undue waste of time
252
How must jury be directed re hearsay evidence?
Reminded that statement not given on oath & not tested on cross-examination, Point out risks of relying on hearsay.
253
When is notice required re hearsay evidence?
Where party intends to introduce hearsay evidence under s114 (interests of justice), s116 (witness unavailable), s117 (document prepared in contemplation of criminal proceedings), or s121 (multiple hearsay)
254
What must notice re hearsay include?
Identify hearsay evidence, set out facts relied on that make evidence admissible, explain how they will be proved if disputed, explain why evidence is admissible. Evidence must be attached to the notice if not already served.
255
When must notice for hearsay be served in Mags Court?
Prosecution must serve notice not more than 20 business days after not guilty plea
256
When must notice for hearsay be served in Crown Court?
Prosecution must serve notice not more than 10 business days after not guilty plea
257
What is procedure for opposing introduction of hearsay evidence?
No more than 1- business days after: service of notice to introduce hearsay, service of evidence objected to, D pleads not guilty
258
What must be included in application to oppose hearsay evidence?
Which facts are disputed, why evidence is not admissible, any other objection
259
What is the test for whether a child is a competent witness?
Whether they can understand questions and given comprehensible answers
260
Ordinary witnesses competent & compellable for pros & defence?
Yes to both
261
4 types of witnesses?
Ordinary, co-defendants, defendant, spouse
262
Co-defendants competent for prosecution?
No
263
Co-defendants competent for another co-d or themselves?
Yes
264
Co-defendants compellable for prosecution?
No
265
Co-defendants compellable for defence?
No
266
When can spouses be compelled to give evidence for prosecution against their partner?
If offence charged is assault/injury/threat to spouse; assault/injury/threat to child under 16; sexual offence against someone under 16l attempts/conspiring/aiding/abetting any of the above
267
What is privilege against self-incrimination?
General common law principle that witness (other than D) has right to refuse to answer questions or disclose docs if to do so would make them liable to incriminate themselves
268
When will legal communications with third parties be privileged?
In the case of litigation but not general advice
269
Can you take third party instructions to represent someone who has been arrested?
Yes but should go and check with suspect
270
Three ways an out of court written statement can be used?
Statement may be read out if contents are agreed; witness can ask to refresh their memory from their statement; in cross examination of previous inconsistent statement
271
What can the party calling the witness do if treated as hostile?
Free to cross examine hostile witness & put previous statement to them as the truth of the matter. Any inconsistent statement presented to a witness can be used to prove the truth of its contents
272
Main exceptions where court will hear evidence of an earlier consistent complaint/statement?
Res gestae, suspect's response to police allegation, complaints, recent fabrication
273
Can leading questions be asked in cross-examination?
Yes
274
When can a police witness statement become admissible?
If witness in box giving live evidence departs materially from the statement - original statement can be produced
275
What is rule on finality on collateral matters?
If witness is asked about something collateral during cross examination, their answer is seen as final
276
What are circumstances where unused material has to be disclosed?
If would undermine prosecution case or help defence case then has to be disclosed
277
What purposes will the court have regard to when sentencing?
The punishment of offenders, the reduction of crime, the reform & rehabilitation of offenders, the protection of the public, the making of reparation by offenders to persons affected by their offences
278
When can Mags court commit to Crown Court for sentencing?
For either way offences
279
When is a Newton hearing held?
Where a defendant pleads guilty on a basis that will make a material difference to sentence
280
What happens at a Newton hearing?
Magistrates/DJ in Mags, No jury in Crown court. Normal trial process. Court decides whether prosecution proved facts beyond reasonable doubt, if yes then sentences on prosecution version of the facts. If not then sentenced on defence version of facts.
281
How long can a court defer sentence for?
Up to 6 months
282
What is the statutory threshold for making a custodial sentence?
The offence or others associated with it were so serious that neither a fine alone nor a community sentence can be justified for the offence
283
What is the statutory threshold for making a community order?
The offence or others associated with it were serious enough to warrant the making of such an order
284
When must a court obtain a pre-sentence report?
Before passing a custodial or community sentence unless it considers it unnecessary to do so
285
What must court do if contemplating sentence pursuant to Mental Health Act?
Receive evidence from 2 medical practitioners that defendant is suffering from a mental disorder
286
What is the approach to sentencing (order)?
Determine seriousness, consider aggravating factors, consider mitigating factors, consider assistance given to the prosecution, consider appropriate reduction for guilty plea, consider totality, appropriate ancillary orders considered
287
What is Max reduction in sentence if guilty plea at first stage of proceedings?
1/3
288
What is max reduction in sentence if guilty plea after first stage in proceedings?
1/4
289
What is max reduction in sentence if guilty plea on the day of trial?
1/10
290
What are the groups of non-custodial orders?
Absolute and conditional discharge, fines, compensation orders, disqualification, forfeiture, restitution/restoration, orders for offenders aged under 18
291
What are the groups of custodial sentences?
Discretionary custodial sentences, minimum sentences for particular offences, life sentences, dangerous offenders, suspended sentence, detention for adults aged under 21, detention for offenders aged under 18
292
What is max length for conditional discharge?
3 years
293
What is a conditional discharge?
Won't be punished but if you commit offence within time then can be re-sentenced for original one
294
What is an absolute discharge?
No action taken, free to go (still conviction on record)
295
What are requirements for making a community order?
Offender must be over 18 and offence must be punishable with imprisonment
296
What is the maximum length of a community order?
3 years
297
What is period for unpaid work community order?
12 months
298
What is maximum term of a curfew community order?
12 months
299
What is maximum period for exclusion requirement community order?
2 years
300
What is maximum period of foreign travel prohibition community order?
12 months
301
What is maximum period of alcohol abstinence and monitoring community order?
Maximum 120 days
302
What are max sentencing powers of imprisonment of Mags Court?
6 months for summary only, 12 months for either way offence
303
What is min & max operational period of suspended sentence?
6 months and 2 years
304
What is maximum term of an EDS?
5 years specific violent offence, 8 years specified sexual/terrorism offence; cannot exceed max term permitted for the offence
305
When is prosecution entitled to make a closing speech in the Mags?
When the defendant is represented
306
What are 3 means of appealing a decision in Mags court?
1. Appeal to Crown Court by way of re-hearing
307
When should appeal by case stated to High Court?
When Mags made an error of law
308
When must notice of appeal be lodged when appealing to the Crown Court?
Within 15 business days of sentence
309
Who must notice of appeal be served on when appealing from Mags to Crown?
Served on Mags court and on prosecution
310
What to do if notice of appeal from Mags to Crown is served outside of 15 business day limit?
Must be accompanied by application for extension of time and reasons for delay
311
Is there a right to bail pending an appeal?
No
312
How to abandon an appeal from Mags to Crown court?
Give notice in writing to Mags Court, Crown court and prosecution
313
Can Crown Court increase sentence in an appeal from the Mags?
No
314
Who can appeal by way of case stated?
Prosecution and defence
315
What is deadline for appeal by way of case stated?
21 days from the date of the decision sought to be appealed
316
What is time limit for appealing for JR?
Promptly & within 3 months after the grounds arose
317
Who can grant bail to an applicant for JR?
Only the High Court
318
What is 'slip rule' in the Crown court?
Judge can vary or rescind a sentence (or order) they made within 56 days
319
Who must give leave for an appeal to the Court of Appeal?
one judge
320
Who must Notice of Appeal form be served on?
Registrar of Criminal Division of Court of Appeal
321
When must Notice of Appeal form be served?
Within 28 days of conviction or sentence (depending which type of appeal)
322
When must appellant serve form for renewal of appeal?
Within 10 business days of receipt of notification of the single judge's decision
323
When must appellant serve skeleton of appeal?
21 days prior to the hearing
324
When must respondent serve skeleton of appeal?
14 days before the hearing
325
What is test for whether court can grant appeal on conviction?
Only if court thinks the conviction is unsafe
326
What is test for whether court can grant appeal on sentence?
If court thinks defendant should have been sentenced differently
327
What question does CCRC ask itself when deciding whether to refer case to CoA?
If there is a real possibility the CoA will quash the original conviction or sentence
328
What are 3 requirements for prosecution appeal against terminatory ruling?
The ruling must be made before summing up; an acquittal agreement must be given by the prosecution; the ruling must not be appealable to the CoA by any other means
329
Who can appeal against rulings made at Preparatory hearings?
Prosecution and defence
330
What is time limit for making application to CoA for leave to appeal to SC?
Within 28 days after court gives reason for its decision & no more than 14 days after court's reasons in AG ref case
331
Which court does the PTPH happen in?
Crown Court
332
What are the 2 specific aims of the youth justice system?
To prevent children & young people from offending
333
What is a juvenile?
Someone under age of 18
334
What is a 'child'?
Under age of 14
335
What is a 'young person'?
Between 14 and 17 inclusive
336
What is a persistent young offender?
Likely to be PYO if convicted of imprisonable offences at least 3 times in past 12 months
337
When must parent/guardian attend with the youth at all stages of proceedings?
When under 16 - unless court satisfied it would be unreasonable
338
What must police officers do if detainee appears to be under 18?
Must treat as a juvenile in absence of clear evidence that they are older
339
When should appropriate adult be present in police station?
When juvenile is being read their rights, strip searched/intimate search, being interviewed, attending ID procedure, being charged
340
Who can authorise that juvenile be asked/sign something in absence of appropriate adult?
Superintendent or above
341
Who must consent to juvenile participating in ID procedure?
Juvenile themself if 14 or older, and parent/guardian
342
What are police's 5 options after interview when dealing with child/young person?
1. no further action
343
When can a youth detained for court not be placed in local authority accommodation?
It is impracticable for custody officer to do so, or no secure accommodation is available & other local authority accommodation would not adequately protect the public from serious harm
344
What are statutory criteria for a youth caution to be used?
1. Police satisfied that there is sufficient evidence to charge the youth with an offence
345
When does court have a duty to make a parental bind over/impose a parenting order?
If it would be desirable in the interest of preventing commission of further offences
346
What date is relevant for the relevant age for the purpose of sentencing?
Age at the date of conviction
347
When can the youth court commit a youth to the Crown Court for sentence?
1. Youth convicted of a 'grave crime' offence & court considers Crown Court should have power to impose sentence of detention
348
What is threshold for imposing a youth rehabilitation order (community order)?
Offence must be 'serious enough'
349
What is maximum length for youth rehabilitation order?
36 months
350
What are minimum & max terms for youth referral orders?
Minimum 3 months, maximum 12 months
351
When is a youth referral order compulsory?
Guilty plea + Imprisonable and first time offence
352
What age is required for youth unpaid work requirement?
16 or 17
353
What age is required for youth residence requirement?
16 or 17
354
What are requirements for youth intensive supervision & surveillance requirement?
Offence is imprisonable and custody threshold passed. If under 15 then must be PYO.
355
What are requirements for fosering requirement?
Offence is imprisonable and custody threshold passed. If under 15 then must be PYO.
356
What does referral order require youth to do?
Attend each of meetings of youth offender panel established by a youth offending team & comply with programme of behaviour agreed between youth & panel
357
When is a referral order mandatory?
Youth offender has not previously been convicted of an offence; the young offender pleads guilty to an imprisonable offence and any other offence being dealt with by the court at the same time
358
When is a referral order discretionary?
On second or later conviction and/or offender pleads guilty to offence or connected offence being dealt with by the court
359
When can referral order not be given?
Sentence is fixed by law
360
What is effect of breach of referral order?
Youth referred back to youth court, can revoke referral & deal with youth in any manner they could have originally, or can give a fine
361
What is minimum age for DTO on youth offender?
12
362
When can DTO be imposed on 12-14 year old?
Only if persistent offender
363
What is minimum length of DTO?
4 months
364
What is maximum length of DTO?
24 months
365
What is rough guide for length of sentence for youths?
Hald to two thirds of adult sentence if over 15 or less if younger
366
What is Detention at His Majesty's Pleasure?
Mandatory sentence for any child or young person found guilty of committing a murder, Minimum term 12 years
367
What can Crown Court sentence for youth dangerous offenders?
Can be sentenced to extended detention or detention for life
368
Where does first hearing take place if youth & adult are jointly charged?
In the adults magistrates court
369
What is effect if youth & adult jointly charged and adult is sent to the Crown Court?
Magistrates will have to consider whether it is in the interests of justice for the child & adult to be tried jointly
370
Can a youth sent to Crown Court jointly with an adult be remitted back to Mags if adult pleads guilty?
No
371
When must youth be remitted from Crown Court to youth court for sentence?
If youth found guilty, unless the court thinks it would be undesirable or where offence is homicide
372
Does a youth have a right of election when charged with an either way offence?
No
373
When does a plea before venue occur in the youth court?
Youth charged with offence capable of being a 'grave crime', or
374
What is a grave crime?
Offence that in the case of adult carries 14 years or more imprisonment, and certain Sexual Offences
375
What is test for appealing against sentence?
Court thinks should have been sentenced differently because:
376
Can the right to have someone informed of your arrest be delayed in the case of a child?
No never
