1
Q
What is the mode of address for a lay magistrate in person?
A
‘Sir’ or ‘Madam’, individually
or collectively, ‘Your Worships’
Correspondence mr mrs full name JP
This addresses judges in magistrates’ courts.
2
Q
What is the title for a district judge in the Magistrates’ Court?
A
Judge
Correspondence district judge (name)
This is the title used for judges in magistrates’ courts.
3
Q
What do you call a Circuit Judge (including Recorders and Deputy Circuit Judges) ?
A
Your honour
Correspondence his/her honour judge (surname)
Circuit Judges serve in various courts, including Crown Court.
4
Q
What is the mode of address for a High Court Judge in person?
A
My lord or my lady
Correspondence the honourable mr:mrs (surname)
This is the formal address used in court.
5
Q
What do you call a fellow solicitor in court?
A
‘My friend’
This is a common way of referring to another solicitor in court.
6
Q
What is the term used to refer to a fellow barrister?
A
‘My learned friend’
This is the respectful address for barristers.
7
Q
Fill in the blank: The mode of address for a high court judge in the Crown Court is _______.
A
‘My Lord’ or ‘My Lady’
This reflects the formal etiquette in the Crown Court.
8
Q
What is the collective term used to address lay magistrates?
A
‘Your Worships’
This is used when addressing multiple lay magistrates together.
9
Q
What should persons do upon entry and exit from a courtroom?
A
All persons should bow.
This bow is directed towards the Royal Coat of Arms which sits behind the judge.
10
Q
Who does the bow in a courtroom appear to be directed towards?
A
It may appear that you are bowing to the judge.
In reality, you are bowing to the Royal Coat of Arms.
11
Q
What should all parties do upon the entry and exit of a judge in court?
A
All parties should stand upon the entry and exit of a judge in court.
This is usually signalled by the court usher calling ‘Court rise’.
12
Q
When can two advocates be on their feet at the same time?
A
No two advocates should be on their feet at the same time unless they are both being addressed by the judge.
13
Q
What should an advocate do if they stand to make an objection?
A
If one advocate stands to make an objection, the other advocate should take their seat.
14
Q
When should an advocate be on their feet during a trial?
A
An advocate should be on their feet when questioning a witness, except in the Youth Court or when the witness appears by live link.
15
Q
Where should the defence sit in the Crown Court?
A
In the Crown Court, the defence should always sit closest to the jury.
16
Q
Where does the prosecution typically sit in the Crown Court?
A
Ordinarily, the prosecution would sit closest to the witness box.
17
Q
Can the MC commit for sentence after trial?
A
Yes
18
Q
Once an indication by the mc of a non custodial sentence been given is the mc bound a why?
A
Yes if the D pleads guilty immediately
19
Q
Once an indication by the mc of a non custodial sentence been given when are they not bound?
A
When D pleads guilty at a later date
20
Q
C/D under £5000 can the D elect CC trial?
A
No
21
Q
Theft under £200 can the D elect CC trial?
A
Yes
22
Q
What are the 10 IOJ - merits tests for Legal Aid?
A
- Loss of liberty
- Breach suspended sentence
- Loss of livelihood
- Serious damage to reputation
- Substantial question of law
- Understanding of proceedings
- Ws need tracing
- Expert cross examination
- Interests of someone else
- Any other reason
23
Q
What does ss22 MCA 1980 relate to
A
Low value theft
Summary only
Can elect cc trial
24
Q
What are the 3 ways the MC will take pleas
A
SO - MC will take a plea
TEW - MC will ask D to indicate a plea
IO - MC will ask if D intends to plead G
25
What are the 3 steps for the inital hearing for a TEW
Plea
Allocation
Indicate of sentence
26
G plea at PBV
N/G or no plea at PBV
WHAT AT THE PROCESSES
G plea - Mc proceeds to sentence or commits for sentence
N/G plea - s19 MCA 1980 process
P submission
D submission
Court considers - sentencing powers/allocation guidelines P&D reps
27
What are the two options the MC can do at the allocation
Accept jurisdiction - s20 MCA 1980
Decline jurisdiction - s21 MCA 1980 and send s51 CDA 1998
28
What can d request after the allocation
D can ask for an indication of sentence
29
Does the MC have to give an indication of sentence if d requests one
No
30
Can the sentence be challenged if an indication of sentence has been given
No
31
Is the MC BOUND BY AN INDICATION OF SENTENCE
Yes if D pleads G immediately
No if he pleads N/G
32
5 ways a D can be guilty by omission
A statutory duty
A contractual duty
Voluntarily assumed
By relationship
Dangerous situation
33
When can D still be guilty of an offence despite not immediately having the AR and MR
Continuous act
Sequence of acts
34
What are the 3 ways consent defence will be invalid
V did not have capacity
Consent not informed - v not told risk
Consent not freely given e.g pressure/duress
35
Factual causation & legal causation
FC - but for test
LC - operating and substantial cause
36
Review times
6hrs first then every 9hrs thereafter clock starts on detention
37
When does the clock start ticking for police to hold a D
On arrival at the station
38
What is a surety
A promise by a third party to pay a sum to the court of D absconds
39
40
What does the P need to make clear to the jury in their opening speech
That they bear the burden of proof beyond a reasonable doubt
41
That is the test for the defence to submit a no case to answer
Galbraith Submission
Elements of the offence not made out & where the Ps case at its highest is such that a jury properly directed could not properly convict on it
42
The D has a right to not give evidence but what will happen.
May be subject to an adverse inference - a D cannot be found guilty on the basis of an adverse inference alone
43
What happens if a jury cannot agree a verdict
The judge can discharge them and the P can decide to retry the D at a later date
44
In the MC does the D have the right to make an opening speech
No
45
Should a bench of mags identify whether they came to a unanimous/majority decision
No
46
What should the MC do if a D is convicted
Give sufficient reasons to explain its decision and give D a full argument certificate
47
When a legal advisor provide legal advice to the justices what should they do
Be given publicity even if they attend to the MC when they have retired
48
What is the difference between remand time limits and custody time limits
Remand time limits is how long a D can be remanded until next hearing and custody time limit is the max time a D can be held for the whole time until case concludes
49
If a P wishes to extend time limits for a D who is in custody what is the test
Must show on the BOP there is a good and sufficient cause and it has acted with due diligence and expedition
50
Custody Time Limits in the courts
56 days MC SO
182 days IO
70 days for committals
70 days TEW IN MC reduced to 56 if the allocation hearing is held within 56 days
51
If the court refuse bail what must it give
Reasons for its decision
52
What are the substantial grounds the P must show for believing if D released on bail should be remanded (6)
Fail to surrender to custody
Commit an offence whilst on bail
Interfere with witnesses
Obstruct the course of justice
D committed an IO whilst on bail for a different offence
D granted bail and while on bail breached conditions or absconded
53
Regarding bail what does D have right to
A prima facie right to bail
54
What are the exclusions to bail (which means the right to bail does not exist)
D convicted in MC or CC and court has to adjourn for sentence
D appealing conviction or sentence
Murder/manslaughter/rape/attempts AND has a previous conviction of one of these
55
What must the P show to rebut the presumption of a right to bail for summary offences
A real prospect of a custodial sentence
56
What is the test for D being released on bail for an exclusion
Exceptional circumstances
57
What type of offences do the exception to bail apply to
TEW or IO offences
58
If bail is successful p can apply for conditions what must be satisfied for a condition to be attached
Justified and Necessary - I.e deal with the concerns
Relevant/proportionate and enforceable
59
Can d make another bail so after his first
Yes and can be on the same face s
60
Can d make a further bail app after his two attempts
Yes but only if new facts arise
61
What is an alternative a D can do regarding bail when refused in MC twice
Apply to the CC only for TEW or IO
62
What does the prosecution need to demonstrate for a person under 18 to give evidence by way of special measures
That the child's evidence would likely be improved
63
What Ws are competent and the exception
As a general rule all persons even children are competent to give evidence
Exception if it appears to the court that they are unable to understand the Qs and give answers which can be understood
Any challenged by a party is on the BOP
64
Is the D and Co-def a competent W for the prosecution
No to both
A Co-def could be if they plead or are acquitted
65
66
Who is not compellable for the D
The D
The Co-D
67
Who is not compellable for the P
D
Co-def
Spouse of D (unless for a specified offence)
68
What is a specified offence where the spouse is compellable for the P
Assault to spouse or a child under 16
Sexual assault to child under 16
69
What is the 2 stage test to allow for special measures
Is w vulnerable or intimidated
Under 18
Evidence is like to be diminished due to physical/mental disorder
Would SM improve the quality of evidence given by W
Evidence will be finished due to fear or distress (consider individual circumstances)
70
What does a J need to do if a W gives evidence by way of SM
Warn the jury that any SN must not prejudice the D
71
What special rule exists for special measures for certain people
Children - EIC pre recorded and live link for XExaminatikn
victims of sexual offences Pre recorded EIC
72
Does the D have the right to an opening speech In the MC
No only a closing speech
73
Who can do a closing speech in the MC
P & D
74
Can the D give an opening speech in the CC
Only if they intend to call one witness
75
Who can give a closing speech in the CC
P & D
76
What are the exceptions to where a no case to answer should be heard after all evidence not just half time
Murder/attempt
Manslaughter
S20/s18
77
Galbraith test is for what
No case to answer
78
Galbraith test can occur on 2 occasions
1. No evidence of a crime, judge can stop the case
2. J concludes where the P case at its highest is such that a properly directed jury could not convict
79
What does s22a MC 1980
Low value shoplifting
Tried summarily
Unless D is 18 & decides to elect trial
80
What two circumstances does the presumption of bail not exist
D charged with MURDER
D charged with a serious offence and has a previous conviction for one
81
What is the test for a police officer to arrest someone for breach of bail conditions
Reasonable grounds to suspect that they have or will likely breach the conditions
82
How long after arrest for breach of bail conditions does a D have to be brought before the MC
24 hours
83
Is breach of bail conditions an offence
No
84
What is the starting point for confessions and the two grounds
They are admissible unless D challenges the application
S78 breach of PACE and not in the IOJ to allow
S76 obtained by oppression/things done or said by police invalidly
85
What does important explanatory evidence mean to introduce bad character
where the court would find it impossible to understand the case without it.
86
Bad character gateways
* Agreement of all parties
* Evidence adduced by the D
* Important explanatory evidence: The evidence is crucial to understanding the facts of the case.
* Relevant to an important issue between the defendant and prosecution: This is a common gateway, where the evidence has substantial probative value on a significant issue in the case.
* Relevant to an important issue between the defendant and a co-defendant: Used, for example, if one defendant is trying to shift blame to another.
* To correct a false impression: If the defendant has given a misleading impression about their character, bad character evidence can be introduced to set the record straight.
* The defendant has made an attack on another person's character: If the defendant attacks the character of a witness or another person involved in the case, their own bad character can be revealed.
87
When must standard due diligence checks be carried out
The solicitor must carry out standard customer due diligence checks before carrying out an occasional transaction of over £15,000, as this is a standard requirement under the Money Laundering Regulations.
88
When can the P appeal against bail conditions
the prosecution can appeal to a judge of the Crown Court against the decision to grant bail, although this is rare. The appropriate avenue is the Crown Court because robbery is an indictable offence and any appeal against bail by the prosecution must be for an indictable offence.
89
Special measures for youths
The victim is eligible for special measures because she is under 18, but judicial discretion applies as to which measures may be granted.
90
Special measures and the defendant
The defendant is over 18 and is eligible to apply for special measures because he has a significant impairment of intelligence and social function. However, the judge can refuse the application.
91
What is the legal position regarding the judge’s use of the Sentencing Guidelines
The judge must follow the Sentencing Guidelines unless this would be contrary to the interests of justice.
92
G plea reduction and timing
33% first hearing
20%/ 25% after first hearing b4 trial
10% day of trial or during trial
93
Does the P need to distinctly allege that a person was an accessory to a crime
No they are simply accused of the principal offence
94
If it is clear BRD that a D acted as principal or accessory by encouraging the principal the P can do what
Seek to prove the case against the D on the basis that they must have done one or the other & jury will be directed that it needs to agree BRD which role the person took
95
What offences can a person not be an accomplice liability
Summary only offences
96
How is aid abet counsel and procure now interpreted to mean by the courts
Assisting or encouraging the commission of the offence
97
If no offence was committed by a principal can the accomplice be liable
There can be no accomplice liability
98
Does a principal offender need to be convicted for an accomplice to be convicted
No the offence needs to be committed but the principal could be found not guilty and the accomplice still be liable
99
What is needed for the accessories MR
Intention to assist or encourage and a degree of knowledge of what was being assisted
100
For withdrawal from participation by a D what needs to happen
Clearly communicate their withdrawal to the other participants
Withdraw before offence complete
Running away/not turning up not enough
101
Can an attempt be a summary offence
No only TEW or IO offences
102
Can you aid abet counsel procure an attempt offence
No
103
What does section 1 of the Criminal Attempts Act state
A D will be guilty of attempting an offence if they have done an act that is merely more than preparatory
104
Can adverse inferences be drawn against D for failing to give evidence at trial
Yes under s35 CJPOA if a D fails to testify without explanation the jury can draw adverse inferences
Court or jury can draw such inferences as appear proper without a reasonable explanation
105
106
Aggravated criminal damage
Life must be endangered by the damage not the act
107
Can the CPS admit bad character evidence to correct a false impression given by D
Yes provided such evidence is relevant to correct the impression given
The impression can be made by D or a W for the D
108
When deciding if a document is admissible as hearsay what are the two grounds it can be admitted
Business document
A statement prepared for criminal proceedings but the W is UNAVAILABLE I.e because they are too afraid but court needs to be satisfied it is in the IOJ and if special measures could be used
109
What is the definition of hearsay
A statement not made in oral evidence which is used as evidence of any matter stated
That means it is being used in court by one side to prove what they are alleging is true
110
A W statement made outside of court which the CPS will want to repeat in court to prove a matter to be true is what
Hearsay
111
The ground of hearsay to admit a business document what needs to be satisfied
Can be admitted if relevant to the matter in proceeding
D created during their job
Person has knowledge of matters spoke.
Information received during their job
112
What is res gestae
A ground for admitting hearsay when a statement made at the time which is unlikely to have been made up
113
Hearsay when should D inform parties they wish to rely on it and what does the CPS need to do
D served as soon as reasonably practicable
P if opposes must serve a notice within 10 business days
114
who does the legal burden of proof usually lay with
The Prosecution
115
Who decide whether a party has discharged its legal burden
Tribunal of Fact
(Jury/Mags/Judge)
116
What are some statutory exceptions where the legal burden of proof lays with D
Possession of a bladed article and D must prove he had a reasonable excuse
Diminished Responsibility
On the Balance of Probabilities
117
what does the evidential burden of proof mean
A burden imposed upon a party to adduce sufficient evidence on facts to satisfy the Judge that the issues can be left for the Tribunal of Fact to decide
118
What is the primary rule on admissibility of evidence
that only relevant and admissible evidence can be admitted
119
When are Turnbull guidelines given
If eyewitness id is left to the jury and directs the jury from attaching too much weight to the W's testimony without careful consideration failure to do so could result in a ground of appeal
120
When must a case be withdrawn from the court based on ID
when the case wholly or substantially based on poor ID unless there is other supporting evidence
121
What should a D be told before a ID process at the Ps
should be informed about the purpose, process and any description before the procedure was held. They should be told that they can have a legal advisor present. Before any procedure takes place, the defendant or their representative should be made aware of any description of the defendant made by the witness
122
Failure to follow the procedures for ID under Code D could result in what
the evidence being potentially admissible under s78 PACE
123
What code of PACE are ID governed by
Code D
124
What is the test the court needs to consider for refusing bail when they have the primary facie right to bail
Substantial grounds for believing
D will fail to surrender/commit offences whilst on bail or/interfere with witness or obstruct the course of justice
125
Basic intent offences and intoxication (recklessness)
With the basic intent offences the D will either be G because they were reckless (thought about it and took risk anyway)
OR
if the could not foresee because drunk that drunkenness itself will suffice the recklessness without the need to prove foresight
126
When should identification evidence be withdrawn
When it is so poor unless there is supporting evidence
127
Can burglary be committed in the garden
No but can still be trespassing
128
What will the charge specify in terms of burglary
Burglary of a dwelling will be noted and it is more serious than any other building
129
What are the three offensive weapons for an aggravated burglary
Offensive weapons (even adapted)
Firearms (even pretend)
Explosives
130
Fraud is a subjective test so D must ...
D must know/might know representation is untrue or misleading
Ought to have known not enough
131
If there is no legal duty to disclose information for fraud can they be guilty
No
132
Lawful Excuse and Criminal Damage when does it apply
The defence of lawful excuse applies whether the consent actually exists. All that is necessary is that the defendant proves a genuine belief in consent at the time of the relevant act. Note that the defendant has to prove this defence (rather than the prosecution disprove it)
133
An individual deceived their elderly relatives into paying for a new car to be bought under the names of the individual and their parent instead of the victims. is this Theft and why?
No because there was no appropriation (i.e. physical action in relation to the property)
However could be Fraud
134
Real Evidene
Physical Evidence like a material object
(a statement is not real evidence)
135
Res gestae requirements
Made immediately after event
Made under pressure of the moment
Spontaneous
136
Confession
Statement wholly or partly made involving an admission
137
Circumstantial Evidence
Evidence of circumstances surrounding the crime which inferences can be drawn
138
When is a leading question objectionable
it is suggests answers to the W
or
assumes a Fact to be true when it has not been established
139
Non leading questions will let the W answers the Q what do the Q usually start with
Who Where When Why How
140
When can a W be asked a leading question?
This is the case if the witness has been determined by the court to be hostile,
The questions are about matters that are not disputed in the case,
The questions are about matters that have already been established in evidence.
141
The Ws statement is not evidence but it can become evidence when
if it is established that there are inconsistencies between the witness” testimony and the statement.
It can also become evidence instead of the witness, either as a read statement, or, under the hearsay rules.
142
What is the purpose of cross examination
Undermine the W's testimony
Support the partys case
Admission to facts
143
What is the limit to Cross examination
To matters that are relevant and credibility of a W on those issues
144
when can re-examination take place
When matters are mentioned for the first time during cross-examination
145
The rule against hearsay does not ban all repetition by a W. What are these exceptions?
* threats in cases of self-defence,
* lies and deceptions in a case of fraud,
* provocation in case of loss of control, or
* statements of knowledge or belief, or statements of mistaken knowledge or belief where these are relevant to guilt
146
Hearsay is admissible if it fits into one of the exceptions in the CJA 2003 (11)
* is dead,
* is mentally or physically unable to act as a witness,
* is outside the jurisdiction and cannot practicably be brought to court,
* cannot reasonably be found, or
* is kept away from court through fear. In this last case leave of the court should be obtained before they can be called as a witness
Documents to be admitted, if that information was made or received in the course of a business, organisation or profession.
Common law rules
* Res Gestae
* statements made while carrying out an act, and
* statements about a person’s mental or physical state such as that they have a pain in their stomach or that they intend to go somewhere or do something.
Parties Agree
147
What is the process for admitting hearsay
Notice given of objection
148
How can you exclude evidence using s78 PACE
by showing on the basis that admitting such evidence would adversely affect the fairness of the proceedings
149
When would a witness be treated as hostile
the witness shows no desire to tell the truth on behalf of that party. This could be by silence, evasion, inconsistencies or lies, and it is a matter for the judge to determine
150
Distinguishing Hearsay
the purpose for which the out of court statement is adduced. In other words, why does the party seeking to admit the out-of-court statement want that statement to be admitted into evidence? If the purpose is to prove the truth of that statement, then it is likely to be hearsay, subject to one more requirement set out immediately below. If the purpose is for some other reason, then it is not hearsay evidence
151
what four questions should you ask to determine if it is hearsay?
*Is the evidence a statement?
*Is it an out-of-court statement?
* Was the purpose (or one of the purposes) of the maker of the out-of-court statement to cause another person to believe that statement to be true?
*Is the purpose of admitting the statement to say that the statement is true?
152
Hearsay is admissible under statute
Maker is unavailable
Business document
Admissible previous inconsistent statement by a witness
Admissible previous statement by a witness
Admissible as exceptions in the Criminal Justice Act 2003
It is in the interests of justice to admit the statement.
153
When is hearsay Admissible (5)
the maker is dead
*
the maker is unable to attend due to a physical or mental condition;
*
the maker is outside the UK and it is not reasonably practicable to secure their attendance at court: s 116(2)(c)
*
the maker cannot be found despite reasonably practicable steps having been taken to find them: s 116(2)(d), or
*
the maker is kept away from court through fear
154
What does the defence have to prove to exclude confession
A causal link between the things said or done (or the oppression) and the confession made by the defendant.
155
If a confession give the police further leads to additional evidence. If the confession is excluded is the further evidence excluded?
The further evidence will still be admissible under s 76(4), but it will not be possible to show that the evidence was obtained fsrom a confession. This may, of course, undermine the overall probative value of such evidence.
156
s76 PACE
s78 PACE
Oppression or Unreliability
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 of the proceedings that the court ought not to admit it.
157
Who decides in the case of robbery that appropriation can be a continuing act
It’s for the jury to decide
158
Mens Rea of theft/Robbery
Dishonest Intent
159
How will property be regarded as belonging to another
By having a proprietary right right or interest
160
Can a proprietary interest be handed over to someone else for theft
Yes e.g to a garage
161
Theft Act does not define dishonesty instead it lists 3 situation that the D is not considered dishonest what are they? Subjectively considered by the Jury i.e what the D believed
1. D believes he has a legal right to deprive the owner of it
2. D believes that the owner would consent to
3 D believes that the true owner cannot be found
If none of these apply the question becomes objectively ‘what did the reasonable person believe on the facts as the D believed them to be’
162
If a person uses or threatens force but fails to complete a theft making out robbery what can the D instead be convicted of
Assault with intent to Rob
163
Robbery and force does the force need to be applied
No a mere threat of force will suffice
The person just has to apprehend that force will be used and do not have to actually be frightened of it
164
Does entry into a building need to mean fully entered into the building to be burglary
No e.g leaning through a building has been held to be effective entry
165
How many offences of fraud are there
Technically one but it can be committed three ways
166
Do the three exceptions of dishonesty in theft apply to fraud
No
167
What do all three offences of fraud require
The intention to gain or cause a loss but it is not necessary that it actually happens
168
Can the virtual certainly MR be inferred for fraud
Yes
If it can be proved that D foresaw that it was a virtually certain that they would cause a loss
169
Can fraudulent representations be made orally and in writing
Yes
170
Can an unreasonable quotation for work be a false representation
Yes where a relationship of trust is involved
171
When is a representation false made
If it is untrue or misleading
It is a subjective test
172
When making a false representation in fraud does the D need to realise it is false or misleading
Yes
173
Can fraud by making a representation be on the basis D ought reasonably to have realised his statement was misleading
No
174
Who decides whether a legal duty of failing to disclosure arise
The Judge if it arises the jury will decide on the facts
175
IF a person makes a representation that later becomes false under fraud and then does not correct that representation comitts which offence
Fraud by making a representation
Fraud by failing to disclose
176
What is the reason character evidence is admitted to prove
* whether or not the person was likely to have acted in a particular way (such as commit a crime); or
* how credible that person might be as a witness.
177
What can Bad Character consist of (3)
* previous convictions;
* cautions, or
* conduct that was either not prosecuted, or, may not in fact even be a crime, but which is reprehensible.
178
A defendant can produce evidence of their good character, and ask for it to be considered in deciding whether they are likely to have committed the offence, by establishing (3)
* general good reputation (here, hearsay evidence will be admissible)
* an opinion of general good character by a character witness, or
* a lack of previous convictions
179
When is it not possible to ask to admit for a good character direction
to prove specific good behaviour in the past
180
Whats the difference between Absolute Good Character and Effective Good Character and what must happen
AGC is a complete lack of previous convictions, cautions or reprehensible conduct.
In this case, tribunal of fact must be directed – – to take the good character into account.
EGC means situations where there are old, stale, infrequent or not particularly relevant convictions, cautions or wrongful actions.
In that case, the judge must consider whether there is effective good character and, if so, must give a direction to the jury.
181
What does if it goes to an important matter in issue in the case for bad character mean
It proves or disproves a key fact in dispute.
182
Three powers to exclude evidence of previous bad character what are they.
First, there is a power to exclude propensity evidence if, given the time since a previous conviction, it would be unjust to admit it.
Second, evidence admitted under gateways (d) or (g), must be excluded if it appears to the court that admitting it would have an adverse effect on the fairness of proceedings.
Third, prosecution evidence may be excluded if admitting it would have an adverse effect on the fairness of proceedings under section 78 of PACE
183
Leave of the court is required to admit non D bad character and will be only granted if (2)
* It is important explanatory evidence or
* It has substantial probative value in relation to a matter in issue, and, that matter is of substantial importance.
184
S78 PACE
J can exclude ANY evidence based on that it would be unfair to adduce it as it would have such an adverse effect on the fairness of the proceedings that it ought not be admitted
(discretionary power)
185
Examples of when s78 has been used
* evidence obtained from unlawful searches
* confessions obtained in breach of codes or statutory provisions
* identification evidence obtained improperly
* evidence obtained through inappropriate use of undercover policing or entrapment
* unlawfully obtained intercepted communications, and
* evidence obtained by lies or tricks, such as a confession obtained by telling a defendant and his solicitor that incriminating evidence has been found
186
If a person is of good character what should the Judge do
Direct the Jury or Mags accordingly of the good character
187
Absolute good Character
absolute good character if the defendant has no previous convictions and no other reprehensible behaviours proven against them. There is no requirement to prove positively good character,
188
Effective Good Character
effective good character if the defendant has previous convictions or cautions that are not relevant to the charge, are old or minor. The defendant may (but not must) be entitled to be treated as of effective good character. This is a discretion of the court based on all the evidence and the issues in the trial
189
Question of good character is a matter for whom
The Tribunal of Law
190
Does the Judge have the discretion to consider a modified good character
yes
191
7 Bad Character Gateways
(a) Evidence all parties to the proceedings agree to being admissible.
All parties
(b) Evidence directly adduced by the defendant.
Defendant
(c) Important explanatory evidence.
Prosecution
(d) Evidence relevant to an important matter in issue between the defendant and the prosecution.
Prosecution
(e) Evidence with substantial probative value in relation to an important matter in issue between a defendant and a co-defendant.
Co-defendant
(f) Evidence to correct a false impression given by the defendant.
Prosecution
(g) Evidence admitted where the defendant has made an attack on another person's character.
Prosecution
192
What two types of bad character is automatically admissible
* The bad character “has to do with the alleged facts of the offence with which the defendant is charged”: This means evidence of the offence itself but also character evidence that relates to the offence by being contemporaneous with and closely associated with it or taking place at or about the same time. An example would be a defendant charged with escape from lawful custody.
*
The bad character evidence is evidence of misconduct in connection with the investigation or prosecution of the offence. This covers attempts to intimidate witnesses, hide evidence and lie on oath, so long as such conduct is within the context of the particular offence being prosecuted.
193
Important Explanatory Evidence (Bad Character)
evidence without which “the court or a jury would find it impossible or difficult properly to understand other evidence in the case. SUBSTANTIAL VALUE for understanding the case
Examples may include evidence that a witness could confidently identify the defendant because he had sold them drugs frequently in the past.
194
Relevant to an important matter in issue between P & D
covers any material dispute on a fact in issue in the case, including the identity of the offender. Distinctive Features between only used if it has been proven that D committed those previous acts
For example, D is prosecuted for a murder that took place in the course of a robbery and alleges self-defence. Evidence of a previous occasion where they were involved in a strikingly similar attempted robbery could be proven against them to rebut the innocent explanation.
Another example is a defendant who is charged with possession of controlled drugs with intent to supply and alleges that they intended to commit suicide with them. Evidence of previous convictions for suppling drugs is admissible against them.
195
Can previous convictions be admitted to prove a propensity to be untruthful
Yes
196
Can a co-d seek to admit evidence where D is creating a false impression of bad character
No only the Prosecution
197
When MUST the court not admit evidence through the gateway on an important matter in issue between P & D or an attack on another's character
if doing so
would have an adverse effect on the fairness of the proceedings
198
What does if doing so
would have an adverse effect on the fairness of the proceedings not apply to for the gateways
Other gateways for prosecution evidence (important explanatory
evidence or evidence to correct a false impression), nor does it apply to a co-defendant’s
evidence.
199
What is the difference between refusing bad character under :-
A gateway and s78 application
Gateway Refusal
Court MUST not admit
s78 - Court may refuse to allow evidence
200
What is the test for refusing evidence under s78
the court may
refuse to allow evidence if its admission “would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it”
201
3 non D bad character gateways
* it is important explanatory evidence and its value for understanding the case is substantial
* it has substantial probative value in relation to a matter of substantial importance in the
case, or
* all parties agree.
202
Admittance of Non Ds bad character test is that ...
Must be of Substantial Importance
AND
Must have Substantial Probative Value
203
Notice of Bad Character Times
Prosecution not more than 20 days after plea in MC or 10 days after plea in the CC
204
How long after does a party have to object to a bad character application
10 business days
205
When does s 78 not apply
This power does not apply to evidence
admitted by or for defendants, even if against co-defendants.
(I.e. P cannot use)
206
s78 wording
the court may refuse to allow evidence on which the P proposes to
rely 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 of the proceedings that the court ought not to admit
it
207
208
Can you be guilty for an omission for a criminal offence
yes but only if the offence is one capable of being committed by omission e.g the D had a duty to act
209
What direction should be given for oblique intent
In line with the Woolin case - whether the death or serious injury is a virtually certain result of Ds actions and whether the D realised as such
210
Can medical treatment break the chain of causation in criminal matters
It can but lonely if it is palpably wrong (not merely negligent)
211
Difference between a principal offender and an accomplice
PO commits the AR of the offence
A assists or encourages the PO to commit the offence
212
Does the P need to allege that a D was either a principal or an accessory
No it is sufficient to prove that a D was involved in some way
213
What ways can a person could assist the D as an accessory (e.g by giving them a weapon) (2)
D knows the type of crime that may be committed
Or
Knew the range of offences that may be committed
214
Can a D be liable for an attempt when the full offence is impossible to commit
Factually Impossible - Yes
Legally Impossible - No
215
ATTEMPT murder is the MR intention to kill or cause really serious harm
No - An ATTEMPT murder is only acceptable where the MR is the intention to kill ONLY
216
Can low value shoplifting be an ATTEMPT despite it being a summary only offence
YES - usually SO offences cannot be an attempt (this is the exception to the rule)
217
Attempted murder what is the MR
Intention to kill ONLY - no intention not guilty for an ATTEMPT
218
If a person is drinking alcohol does it matter whether he knew the strength of it as to whether he would be voluntary or involuntary intoxicated
No it is irrelevant if the person was aware he was drinking would not matter of the strength so they would not amount to involuntary intoxication would be voluntary
219
Where a mistake is made about the need of force used whilst voluntarily intoxicated can the person use self defence
No - self defence cannot be used for either BI or SI offences when a mistake has been made due to voluntary intoxication
220
What is the direction a J should given for self defence of a householder
Whether the force used was grossly disproportionate if so defence fails
If it is not the jury should ask whether the force used was reasonable.
Disproportionate force may be reasonable but for the jury to decide
221
What is the difference between used and unused material
Used Material
Evidence that the party intends to rely upon to prove their case
Unused Material
Evidence that a party has in its possession that might be useful to the other party but which it does not intend to use
222
Which party is the only party that has a duty to reveal unused material
The Prosecution
223
ICPC must be provided for which types of offences
Summary Only
TEW
224
When should IDPC be provided
before the first appearance and at latest before the hearing begins
Or at the defences request and it is reasonable to do so
225
In the Crown Court a case bundle should be made available to the D within what time period
Within 70 days of being sent to the CC
or 50 days if D is in custody
226
What is a streamlined disclosure certificate and who puts it together and time it needs to be completed
A certificate of identifying material that may undermine the P case or assist the defence
Put together by the Police within 28 days of a N/G plea
227
how long does the defence have to outline their case
28 days of P disclosure of unused material
228
Failure to provide information about witnesses or sufficient defence statement can lead to what
Adverse inferences being drawn
229
From what age are children presumed to be capable of giving sworn testimony
14 years old
(under 14 years old not presumed but if can show they are able to understand Qs can give evidence UNSWORN)
230
If a witness summons has been issued by the court the police can arrest with a warrant if what...
* is to produce material evidence,
* has been properly served with the summons and
* has no “just excuse” for their failure to attend
231
The spouse or civil partner of a party is competent and compellable for the defence but not the prosecution, unless the defendant is charged with:
* an actual or threatened assault, or injury to the spouse or civil partner
* an actual or threatened assault or injury to a person under the age of 16 at the time, or
* a sexual offence against a person under the age of 16.
232
Special Measures are available for two types of Witnesses what are they
* Vulnerable witnesses, that is, those who are under the age of 18 at the time of trial or who have significant impairment of intelligence, social function, suffer from disabilities or disorders, and
* Intimidated witnesses, that is, any witness whose evidence, would be diminished by fear or distress related to giving evidence.
233
Who are automatically entitled to special measures
Child witnesses
234
Applications by the P for special measures should be notified within what period
Crown Court prosecution should notify the defence within 28 days of service of the court bundle.
Magistrates’ Court within 14 days of the not guilty plea.
Any objections should be notified within 14 days of that notification
235
When can the court grant anonymity
* doing so protects the safety of the witness or another person, or prevents real harm to the public
* such an order could not undermine the defendant’s fair trial rights
* the witness’ evidence is important, and
* the order is needed because without it, the witness will not testify, or there would be real harm to the public interest.
236
What affect does an anonymity order give
The effect of the order is to allow names to be withheld or changed, or voices disguised, but the judge, court staff and tribunal of fact should be able to see the witness
237
Are pre trial decisions binding on the final tribunal of fact
These pre-trial decisions are binding on the trial bench, until the trial matter is disposed of, although the trial bench can vary a ruling if it is in the interests of justice, and a party may seek variation of an order if there has been a material change of circumstances.
238
How long is a PTPH held after being sent from MC
28 days
239
What is the general rule regarding special measures and children
Al Ws under 18 will: -
Evidence in chief will be video recorded
Cross examination and re examination will be by live link
240
Whether formal admissions can be made when dealing with pre trial issues is under what act
S10 Criminal Justice Act
241
PTH should be listed when
Within 28 days of the case being sent to the CC and not more than 35 days
242
What is the term used when a D asks for an indication of the likely sentence
A Goodyear direction
243
Unused material what is required for MC and CC
MC a Streamlined Disclosure Certificate prepared by the politice
CC A Schedule prepared by the police disclosure officer called MG6C
Prosecutors review these when making a decision whether to disclose
244
What is the prosecutions duty to provide to the defence regarding disclosure
Evidence that might reasonably be considered capable of undermining the P case
Or
Assisting the defence
245
If the P wish to withhold disclosure what must they do
Make an Public Interest Immunity Application to the court in private
246
In the MC despite the D not having a duty to provide a DCS do they need to disclose any witnesses they intend to call
Yes
247
When will a witness not be competent
General rule is that all Ws are competent to give sworn testimony unless
They cannot understand the Qs put to them
They give answers that cannot be understood
248
Can a child opt out of special measures
Yes as long as the court is of the view that it will not diminish the quality of their evidence
249
An adult victim to a sexual offence is presumed to be in fear and therefore eligible for what
Special Measures unless they wish to decline this
250
What should the Judge do regarding special measures
Warn the jury that the special measures should not prejudice the Defendant
251
What is the test for special measures for a D
Adult - if it is in the interests of justice and D suffers from a mental disorder - live link
Under 18 - Whether their level of intellectual ability is compromised and live link would enable them to participate more effectively
252
For the partial defence of LOC or DR what is essential for the main offence
That all the elements of murder is present
253
What is the test of the D for DR
D needs to call enough evidence to make it possible for a jury to reasonably conclude that the defence of DR is more likely than not (I.e on the balance of probability)
254
What is the test and specific rule for raising the LOC defence
D must go a little further than just raising the defence
Must be sufficient evidence in which the Js opinion suggests a properly directed jury 'could reasonably conclude that the defence might apply'
255
Involuntary and Voluntary intoxication
The Legal Principles
* Voluntary Intoxication:
* The law generally does not allow voluntary intoxication to be a defense. The legal principle is that getting drunk is a reckless act in itself.
* For a crime of specific intent (e.g., murder, s.18 assault), voluntary intoxication may be a defense if it can be shown that the defendant was so drunk they could not form the specific intent required.
* For a crime of basic intent (e.g., manslaughter, s.47 assault), voluntary intoxication is never a defense.
* Involuntary Intoxication:
* Involuntary intoxication can be a full defense if it results in the defendant being unable to form the mens rea (the guilty mind) for the crime, regardless of whether it's a specific or basic intent crime.
* A person is considered involuntarily intoxicated if they have consumed alcohol or drugs without knowing it, or under duress.
256
Aggravated criminal damage
This problem concerns the offence of aggravated criminal damage under the Criminal Damage Act 1971, Section 1(2). The key issue is the interpretation of "intent" and "recklessness" in relation to endangering life.
Here is a breakdown of the legal position:
The Offence: Aggravated Criminal Damage
Section 1(2) of the Criminal Damage Act 1971 states that a person is guilty of an offence if they:
* destroy or damage any property belonging to another;
* intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged;
* and intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered.
Application to the Facts
* Damage: The man threw a petrol bomb at a parked car, causing it to explode. This is clearly an act of criminal damage.
* Intent to Damage: The man's intention was to "destroy" the car. This satisfies the first part of the mens rea for the offence (intending to destroy or damage).
* Endangering Life: The key element is the mens rea for endangering life. The question is whether the man either:
* Intended to endanger the life of the pedestrian. The facts do not state this.
* Was reckless as to whether the life of the pedestrian would be endangered.
The Test for Recklessness
The test for recklessness in this context is subjective. This means the prosecution must prove that the man himself foresaw the risk that life might be endangered by the damage and nevertheless went on to take that risk. This is the test established in the House of Lords case of R v G (2003), which overruled the previous objective test.
What about the act itself?
The prosecution's argument is that life "was endangered" by the act. However, under Section 1(2), the actual endangerment of life is not the crime. The crime is destroying or damaging property with the intent or recklessness as to whether life is endangered. Even if the shrapnel had not been flying towards a pedestrian, the man would still be guilty if he had the necessary mens rea. Conversely, even if life was endangered, he is not guilty unless the prosecution can prove the mens rea.
Conclusion
The correct statement is that the man will only be guilty of aggravated criminal damage if the prosecution can prove that he was subjectively reckless as to whether the pedestrian's life would be endangered by the explosion. The prosecution must show that the man actually foresaw the risk of life being endangered and still went on to throw the petrol bomb. The simple fact that life was endangered is not enough for a conviction under Section 1(2).
257
How is sentencing regulated i.e by what act
Sentencing Act 2020
258
Can sentencing guidelines be ignored and if so why?
Yes if it would be in interests of justice to do so
259
What Statutory Aggravating Factors MUST be taken into account when sentencing (4)
Pre-Cons
Offences committed on bail
Racial/Religious Aggravation
Race/Disabilities etc
All other Aggravating/Mitigating factors are discretionary as to whether the judge takes them into account
260
All aggravating and mitigating facts MUST or MAY be taken into consideration
May
261
When a D is being sentenced for multiple offences how should the J determine the sentence
Determine the sentence for each offence
Then specify if they are to run consecutively or concurrently
262
If the Judge does not specify concurrent or consecutive during their sentencing what is presumed
Sentences are to run concurrently
263
If a D admits other offences during investigation but they are not charged with them what is it called
TICs Offences to be taken into consideration
264
When sentence is being passed for TICs what happens
They can only aggravate the sentence not subject to their own sentence
265
What is the totality principle for sentencing?
the overall sentence must not be disproportionate to the overall seriousness of the offending
266
The sentence of a D must be J......... & P......................
Just and Proportionate
267
Can a sentence exceed the statutory maximum
No
268
When are concurrent sentences appropriate
where the offences arise out of the same incident or facts or are part of a series of offences, especially if committed against the same person
269
How are concurrent sentences imposed
Court should apply the totality principle by looking at the overall sentence and increasing it to reflect all the offending behaviour to ensure that it is just and proportionate. Therefore, concurrent sentences will be a bit longer than each single offence would be. However, this is not a matter of adding together all the individual offences.
270
When are consecutive sentences imposed
where they arise out of unrelated facts or incidents, the offences are of the same or similar kind but the overall criminality will not be sufficiently reflected by concurrent sentences.
271
How are consecutive sentences imposed
The court should again apply the totality principle to ensure that the overall sentence is just. In this case, it may be necessary to reduce the total of the consecutive sentences to achieve a proportionate sentence overall.
272
What are the 4 main types of sentences that may be imposed by the criminal court
Custodial sentences: Can be immediate or suspended and can only if serious enough to pass the custody threshold.
* Community sentences: D will receive one or more requirements to be served in the community. Must be serious enough to pass the community sentence threshold .
* Fines: monetary penalties levied to the seriousness of the offence & D’s ability to pay. fines go to the state; compensation goes to the victim.
* Discharges: These are the least punitive orders that involve no immediate punishment but may be either absolute or conditional on future good behaviour.
273
Custody Threshold for sentence
cannot be imposed unless the court is of the opinion that the offence, or combination of offences are so serious that neither a fine alone nor a community sentence can be justified for the offence. This is determined using culpability and harm factors.
274
Community Threshold sentence
A community sentence can only be imposed (note the word “can” rather than “must”) if the offence, or combination of one or more offences associated with it, are serious enough to warrant the making of such an order.
275
What the min and max the MC can impose for custody for SO
Min 5 days
max 6 months for a SO offence
(never consecutively, never over 6 months even if more than one SO offence)
276
What is the max the MC can imposes for TEW offences
12 months for a single
12 months for two TEW offences or one SO & one TEW
277
What are the three ways custody can be imposed
Mandatory (murder)
Passes Custody Threshold
Agrees to a community sentence and refuses to do so
278
What percentage of a custody sentence is spent in custody
40% remainder on licence subject to conditions
279
What is the exception to the rule that a D will spent 40% is spent in custody when a custody is imposed
D will spent two-thirds of sentence in custody (9.10.5.3)
280
Time spent on remand will it be deducted from sentence
yes
281
Can time spent remanded on bail subject to a curfew and electronic tagging be deducted from the sentence
Yes but to a lesser calculation
282
what term of custody can be suspended
over 14 days and less than 2 years
with an operational period of 6 months to two years
283
If a suspended sentence is imposed does the custody threshold test still need to be passed
yes
284
What requirement needs to be met to pass a suspended sentence
would be appropriate where there is a realistic prospect of rehabilitation, strong personal mitigation or immediate custody would result in significant harm to others
285
If a D breaches a suspended sentence what should the court do
reimpose the full original sentence or a shorter custodial sentence unless IT IS UNJUST TO DO SO
If it is unjust to do so, the court may impose more stringent requirements or extend the operational period of suspension
286
Usually with life sentences Js give a minimum term to be served can they pass a whole life sentence
yes if so serious
287
What is the total duration that a Community Order can be imposed for
3 years
288
What are the limits to fines in the MC and CC
CC - Unlimited
MC - Level 1 £200
Level 2 £500
Level 3 £1,000
Level 4 £2,500, and
Level 5 unlimited.
If an imprisonable summary offence does not specify a level, it is treated as a level 3 offence.
289
What takes preference if a D is to pay a fine or compensation
Compensation
290
The court can discharge a D in two ways
Absolute Discharge - released no further requirement
Conditional Discharge - A period of up to 3 years which D must not commit any further offences
291
What can the court do if D breaches his conditional discharge
Liable to be sentenced again for the offence
292
What is a Victim Surchage
money paid by D upon sentence. Does not go to the victim but to a pool of money that his distributed
293
If the J decides that a written basis of plea (on the facts) will make a material difference what do they need to do
Either sentence on the basis of D's version of events
OR
Newton Hearing
294
Credit for a guilty plea on mandatory minimum sentences is limited to reducing the sentence to what?
80% of the minimum mandatory sentence.
295
Conditional Discharge v Suspended Sentence (which always gets mixed up)
The discharge will be combined with requirements, and they can be brought back to court to be resentenced if they commit an offence or breach those requirements within the next 2 years. Requirements can be attached to a suspended sentence but not to a discharge.
(SUSPENDED SENTENCE)
The discharge means that they have no further punishment but will be subject to be resentenced if they commit an offence within the next 2 years.
(CONDTIONAL DISCHARGE)
296
When can a Community Order be imposed
A community order can only be imposed for imprisonable offences
297
Important explanatory evidence
V
Important issue between PvD
In UK criminal law, the terms "important explanatory evidence" and "important matter in issue between the prosecution and defence" are two distinct "gateways" for the admissibility of evidence of a defendant's "bad character." These concepts are primarily governed by the Criminal Justice Act 2003.
The key difference lies in the purpose for which the evidence is being admitted:
Important Explanatory Evidence
This gateway is concerned with providing context to other evidence in the case.
* Purpose: The evidence is admitted not to prove that the defendant is guilty, but to help the jury or magistrates understand the other evidence presented.
* Test: The evidence must be such that, without it, the court would find it "impossible or difficult properly to understand other evidence in the case." Its value for understanding the case as a whole must be "substantial."
* Example: A defendant is on trial for assault. The prosecution wants to admit evidence that the defendant previously threatened the victim. This past threat is not the crime being tried, but it is important explanatory evidence because it provides context and helps the jury understand the relationship between the two parties and why the victim might have acted in a certain way.
Important Matter in Issue between the Prosecution and Defence
This gateway is concerned with the central issues of the trial itself.
* Purpose: The evidence is admitted because it is directly relevant to a key point of disagreement between the prosecution and the defence. It is used to help prove a matter in issue, such as the defendant's propensity to commit a certain type of crime or their propensity to be untruthful.
* Test: The evidence must have "substantial probative value" in relation to a matter that is "of substantial importance in the context of the case as a whole."
* Example: A defendant is charged with burglary. The defence's case is that they were not at the scene of the crime. The prosecution wants to admit evidence of the defendant's previous convictions for burglary. This evidence is not "explanatory," but it is relevant to an important matter in issue (who committed the crime) by suggesting the defendant has a propensity to commit that type of offence.
Summary Table
| Feature | Important Explanatory Evidence | Important Matter in Issue |
|---|---|---|
| Purpose | To help the court understand other evidence. | To prove a key issue in the case. |
| Relevance | Indirectly relevant, providing context. | Directly relevant to a disputed point. |
| Function | "Puts a piece of the puzzle in place." | "Proves a piece of the puzzle is correct." |
| Test | Must be "impossible or difficult" to understand other evidence without it. | Must have "substantial probative value" to a "substantially important" matter. |
| Focus | The context of the evidence. | The facts in dispute in the case. |
In essence, explanatory evidence is about clarifying the narrative, while evidence relevant to an important matter in issue is about proving or disproving a key fact of the case. Both are "gateways" for allowing evidence that would otherwise be excluded as being "bad character" evidence.
298
Mags court max sentencing powers
• Summary Only Offences: These are the least serious offences and can only be tried in a magistrates' court. The maximum sentence is six months' imprisonment and/or a fine.
• Triable Either-Way Offences: These are more serious offences that can be tried in either the magistrates' court or the Crown Court. For these offences, the magistrates' court's maximum sentencing powers are:
• For a single offence: Up to 12 months' imprisonment.
• For two or more either-way offences being sentenced together: Up to 12 months' imprisonment in total.
299
What are the two voluntary manslaugters
Loss of Control
Diminished Responsibility
300
What are the two involuntary manslaughters
UAM
GNM
301
When looking at Loss of Control what is important about how the court will Judge the D
They will judge the D on a person of his age and sex (does not matter if he was scarred in war he will not be judged on them)
302
303
Loss of Control elements (4)
Murder was due to LOC
LOC from a QT
Judged against a person of same age and sex
With a person of a normal degree of tolerance and restraint
304
What three things are needed for D to withdraw from a crime?
Withdrawal Happened before offence
Communicated withdrawal
Not doing things or leaving is not enough if the act was planned
305
Important explanatory evidence. What does it mean and who can use it
ONLY CPS can use
BC can be admitted if without out the court would find it impossible to understand the case
306
What is a result crime
A crime requiring a consequence
307
What is a circumstance crime?
Requires a circumstances to be present
E.g THEFT - steal is physical act, belonging to another is the circumstance
308
In crime For legal causation and a new intervening act to arise what must happen
The new act must be the sole cause or Ds act is not longer a SIGNIFICANT cause
309
Self defence and intoxication rule
Can be used if D thought use of force was reasonable in all the circumstances as he believed them to be
BUT cannot rely on mistaken believe to use the force if the mistake is due to the intoxication
I.e if VD and mistakenly believes he's being attached and becos drunk uses force
310
Can a battery I.e the force be applied by an agent
Yes - eg by a dog or weapon or pushing another into the V. Knocks mum she drops baby
311
Broken bone is it GBH or Wounding
GBH. As no skin broken
312
Intention or recklessness for s20 GBH does the D need for intend or foresee GBH or a WOUND
No D just needs to intend or foresee SOME HARM
313
Time limits for the P & D to serve hearsay
P 20 days from N/G in the MC
P 10 days from N/G in the CC
D as soon as reasonably practicable
314
If a confession classed as hearsay
Yes because it is an out of court statement being admitted to show the truth however it is the exception to the general rule and can be admitted
315
What is the general rule for Hearsay in criminal matters
That hearsay is excluded
316
Who are confessions evidence against
Only the maker of the statement NO other person mentioned
E.g where a d admits this committed an offence with a co-d it is admissible against d but not co-d
317
What three ways can a confession be challenged
S76(2)(a) by oppression
S76(2)(b) things said/done unreliable
S78 by admitting the confession it would have such an adverse affect on the fairness of the proceedings it ought not be admitted
318
Confession by oppression
Confession by things said/done to make unreliable
S78 admitting would have such an adverse affect on the proceedings it ought not be admitted
How does the P argue against?
P must prove BRD that the confession was not obtained by oppression or things done (stricter)
J decides s78 based on the arguments of D & P
319
Does the things said or done to obtain a confession need to be improper
No just that the things said or done would lead the confession to being unreliable e.g breaches of the peace
320
Can the MC rule on a decision of confession then hear the trial
Yes they can and must ignore the confession
321
There are two type of bad character which is automatically admissible what are they?
BC which relates to the facts with which D is charged
Misconduct during investigation I.e. intimidate a W
322
Where a D discloses his BC accidentally does this fall in a gateway?
NO
323
Ways to tell the difference between IEE V IIBP&D
IEE relates to the context and jury could not make sense of the case without evidence
IIBP&D genuine dispute between P&D shows the types of person who would commit the crime or lying
324
IEE V IIBP&D
IEE - without the evidence the jury would find impossible to understand the case (must have substantial value)
IIBP&D - covers any material in dispute on a fact in issue
325
Breaking the chain in causation legal test for a Victim v a 3rd Party
3rd Party
Must be 'palpably wrong,' 'extraordinary,' or grossly negligent (especially in medical cases).
Victim
Must be 'daft' or 'unforeseeable' by a reasonable person.
