Criminal Practice Flashcards

Question

in what circumstances may a solicitor be excluded from an interview? who would you need to consult?

Answer 1

- 'unable properly unable to put questions to the suspect' -stop the interview - consult SUPERINTEDENT - this officer must then decide if the interview should continue in the presence of the solicitor or not - if sol excluded > opportunity to consult another solicitor before the interview continues

Answer 2

(a) the solicitor has obtained the other client’s consent (preferably in writing) to disclose this information (ie the client waives their right to confidentiality) (b) both clients are putting forward consistent instructions; and (c) the solicitor considers it in their clients’ best interests for the information to be disclosed. - Co- accused who are represented by the same solicitor may attempt to use that solicitor to pass information between each other so that they can jointly fabricate a defence and give the police a consistent ‘story’ > sol should get them to give their accounts first before any disclosure of the others - if the stories are inconsistent the sol will need to withdraw from the case

Answer 3

only when it is in their clients best interests should explain any reasoning to their client and obtain the clients authority (ideally in writing) to disclose this information

Answer 4

explain to the client its reasoning explain their right to free legal advice from another sol or the duty sol ongoing duty of confidentiality - wont tell police tell custody officer they can no longer act for professional reasons (no more details than that)

Answer 5

1. juveniles 2. mental health condition or disorder (if the police suspect that someone suffers from such a condition, then in the absence of any clear evidence to dispel such suspicion, they should treat that person as suffering from such a condition) 3. deaf, unable to speak or blind 4. cannot speak or do not understand english

Answer 6

- everyone has rights to have (1) someone notified about their arrest + (2) free, independent legal advice AND FOR A JUVENILE: - the custody officer must if practicable try to (3) find out the person responsible for their welfare and inform them of the arrest and reasons for detention - could be parent, someone who has assumed responsibility for them or someone from the local care authority if they are in care - if the juvenile is known to be subject to a court order under which a person/org ('responsible officer') is given statutory responsibility to supervise and monitor them, reasonable steps should also be taken to notify them - juvenile's arrest and reasons for detention this right cannot be delayed

Answer 7

they must be under the care of a woman

Answer 8

- JUVENILE hierarchy of who the police should contact with a view to them becoming the appropriate adult: a) parent or guardian (someone from local authority) b) if no one available > social worker for local authority c) if social worker not available > another responsible adult who is aged 18 or over and not connected to the police e.g. aunt/uncle or grandparent - MENTAL HEALTH hierarchy: * a relative, guardian or other person responsible for that person’s care or custody; * someone experienced in dealing with vulnerable people; or * some other responsible adult.

Answer 9

1. sol 2. police 3. an interested party e.g the victim or witness of an offence 4. a person, such as a parent or social worker, to whom the juvenile has made admissions prior to that person being asked to attend the police station to fulfil the role of an appropriate adult; and 5. an estranged parent (but only when the juvenile expressly and specifically objects to the presence of such a person).

Answer 10

- the AA shouldn't provide legal advice themselves - should consider whether it is best for the suspect - appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the suspect - the suspect cannot be forced to see the solicitor if they are adamant that they do not wish to do so the custody officer should explains the juveniles rights in front of them alongside the AA - if already explained to juvenile without AA, should be repeated in the presence of the AA

Answer 11

1. if a juv / mc has been cautioned in the absence of the AA, they must receive the caution again in the presence of the AA 2. they must not normally be interviewed, or asked to provide or sign a written statement under caution or record of interview in the absence of an AA 3. the interviewer must inform the AA they are not in the interview to act as an observer they should: (a) advise the person being interviewed; (b) observe whether the interview is being conducted properly and fairly; and (c) facilitate communication with the person being interviewed

Answer 12

the AA may be asked to leave > consult an officer not below superintendent rank, if one is readily available > otherwise an officer not below inspector rank, not connected with the investigation > the officer should remind the AA their role does not enable them to obstruct + give the AA a chance to respond > if the officer decides the interview should carry on without the AA, another AA must be obtained before the interview can continue

Answer 13

(a) if the suspect is a juvenile aged 14 or over = juvenile + parent/ guardian consent (b) if the suspect is a juvenile aged under 14 = parent/guardian consent (c) If the suspect is suffering from a mental health condition or mental disorder, then the consent must be given in the presence of the appropriate adult.

Answer 14

the written notice (the ‘charge sheet’), which gives the particulars of the offence with which the suspect has been charged

Answer 15

- usually put in local authority rather than police custody the only two situations where a juvenile may be kept in police custody after charge: (a) if it is IMPRACTICABLE to move the suspect to local authority accommodation; OR (b) if the juvenile is aged at least 12 - NO secure LOCAL authority accommodation available AND - keeping them in other local authority accommodation would not be adequate to PROTECT the public from serious harm from them - must be kept away from adult suspects - must not be detained in a cell (usually put in juvenile detention room) unless it is not practicable to supervise them outside a cell

Answer 16

dependent on the severity of the offence: 1. Indictable- only offences = CPS 2. first- time summary and either- way offences = police 3. second and subsequent offences = joint decision from the police, following assessment by the Youth Offending Team

Answer 17

- out of court disposal - for minor offence or anti- social behaviour - informal agreement between the parties - first time offenders + admission of guilt + victim's views have been taken into account - doesnt form part of the offender's criminal record retained by the police

Answer 18

(a) there is SUFFICIENT EVIDENCE to provide a realistic prospect of CONVICTION; (b) it must be determined that a youth conditional caution SHOULD BE GIVEN to the offender; (c) the offender ADMITS to having committed the offence; (d) the EFFECT of the youth conditional caution must be EXPLAINED to the offender and they must be warned that failure to comply with any of the conditions may result in prosecution for the original offence (e) the offender must SIGN a document containing details of the offence, their admission, consent to be given to a youth conditional caution and details of the conditions attached.

Answer 19

they must have one of the following objectives in mind: rehabilitation, reparation and punishment 1. summary-only offence = 16 weeks of the date of the original offence 2. triable either way or an indictable- only offence = 16-20 weeks

Answer 20

where the client is adamant they did not commit the offence

Answer 21

- avoids the client being charged with the offence and having to appear in the youth court - such cautions are not criminal convictions

Answer 22

(a) A record of such cautions will be retained by the police; this includes having fingerprints, photographs and DNA samples taken. (b) will form part of the client’s criminal record retained by the police and may be referred to if an employer makes a Criminal Records Bureau check - may also effect decisions re future disposals (c) It may also need, in certain circumstances, to be disclosed to an employer or prospective employer. (d) The police must refer the client to the appropriate Youth Offending Team who will assess the client and must arrange for them to participate in a rehabilitation programme (unless it is inappropriate to do so). (e) Failure to comply with any conditions imposed under a conditional youth caution can result in prosecution for the original offence. (f) Any youth cautions given and/ or any report on a failure by a person to participate in a rehabilitation programme may be cited in criminal proceedings similar to how a conviction may be cited. (g) If the offence is covered by Part 2 of the Sexual Offences Act 2003, the client will be placed on the sex offenders register.

Answer 23

if that silence occurred at a time when the defendant had not been allowed the opportunity to consult a solicitor to obtain independent legal advice

Answer 24

No - terms of s 34 CJPOA may be satisfied even where a defendant has answered every question put to them, if at trial they raise some other fact in their defence that they did not mention, but could reasonably have been expected to mention, when interviewed.

Answer 25

- this will not automatically prevent the court from drawing adverse inferences - but must be given appropriate weight at trial - jury may be directed by the judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent

Answer 26

- If at trial, in order to prevent an adverse inference being drawn by the court, a defendant gives evidence that they remained silent in interview only following advice from their solicitor, this will not in itself waive privilege - once, D gives sols reasons for their advice = privielege waived - entitled to cross examine D and sol re this advice NOTE > remaining silent on legal advice alone will not by itself avoid the drawing of adverse inferences

Answer 27

SPECIAL CAUTION NEEDED

Answer 28

SPECIAL CAUTION NEEDED

Answer 29

(a) what the offence (b) what fact the suspect is being asked to account for; (c) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question (d) that a court may draw an adverse inference from failure to comply with the request; and (e) that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial

Answer 30

the mags (if over 18)

Answer 31

first appearance at the mags but they will then immediately send the D to the Crown Court

Answer 32

referring to the first two categories either must or may be tried in the Crown Court on indictment

Answer 33

- mags or the crown court - first appearance is at the mags - if D pleads not guilty, Mags decide whether to keep the case before them or send to the Crown if too serious - if Mags keep it = D then has the right to elect trial by a judge and jury in the Crown Court or consent to summary trial

Answer 34

- summary offence - where the value of the goods does not exceed £200 - NOTE if the defendant is charged at the same time with more than one allegation of shop theft then the ‘aggregate’ value must be under £200 for it to be treated as a summary offence - if they opt for a plea of not-guilty, they still have the option to elect whether to elect trial in the Crown Court - if guilty plea they cannot be committed to Crown for sentence - max sentence of mags in low value shoplifting is 6 months custody

Answer 35

- criminal damage = either way - where the value of the property is less than £5k = summary offence unless the damage was caused by fire or to a memorial - where damage is caused by fire or is caused to a memorial the value isnt relevant and it will always be treated as an either way offence

Answer 36

defined widely * a building or other structure or any other thing erected or installed on land, or * a garden or any other thing planted or grown on land where they have a commemorative purpose in relation to any living or deceased person or animal.

Answer 37

the defence sol applies on the D's behalf and applies to the Legal Aid Agency

Answer 38

interests of justice

Answer 39

everyone regardless of their means work done by a sol in a police station will be claimed under one fixed fee regardless of how long they have been there (although special provision is made for cases that are either of the most serious type or are very time consuming)

Answer 40

Non- solicitors (such as trainees) can attend the police station and charge for this work as long as they are either accredited or probationary police station representatives

Answer 41

- mags court - the particular solicitor on duty that day will be available to advise any defendants who do not have their own solicitor but who require legal advice and/ or representation - The duty solicitor will claim their costs in attending court from the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme.

Answer 42

(a) the interests of justice test (b) the means test – the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation. online application form - if they do not automatically satisfy the means test, they must submit a financial statement with any supporting evidence

Answer 43

(a) likely to lose their LIBERTY OR LIVELIHOOD or suffer serious damage to their REPUTATION - offence is likely to result in a criminal record or previous criminal record which will aggravate the sentence - a sol would refer to the Sentencing Guidelines - the sol should take the prosecution's case at its most serious in order to justify legal aid - whether the D is to be remanded in custody or bailed is also relevant - only applies to Ds who either have no previous convictions or convictions for very minor offences - position of standing in the community (b) whether the determination of any matter arising in the proceedings may involve consideration of a SUBSTANTIAL QUESTION OF LAW - P's evidence is in dispute - or the defendant wishes to adduce evidence which the CPS may argue is inadmissible - e.g. turnbull guidelines, adverse inferences, hearsay, confession should be excluded, bad character evidence/previous convictions (c) whether the individual may be UNABLE TO UNDERSTAND the proceedings or to state their own case; - mental or physical disability - poor knowledge of english - age - vulnerability (d) whether the proceedings may involve the TRACING, INTERVIEWING OR CROSS-EXAMINATION of witnesses on behalf of the individual; and - witnesses or experts - D will need to explain why they need legal representation to trace or interview the witnesses (e) whether IT IS IN THE INTERESTS OF ANOTHER PERSON that the individual be represented. - someone else should cross-examine the witness/victim - e.g. D shouldnt cross examine the victim of sexual assault - NOT USED TO ARGUE IT WOULD BE IN THE DS FAMILY'S INTERESTS any other reason

Answer 44

(a) applicants who receive income support, income- based jobseeker’s allowance, guaranteed state pension credit, income- based employment and support allowance or universal credit; and (b) applicants who are under the age of 18.

Answer 45

capital e.g. inheritance, assets disposable income This is done by deducting the following items from the applicant’s gross annual income: (a) tax and national insurance (b) annual housing costs (c) annual childcare costs (d) annual maintenance to former partners and any children and (e) an adjusted annual living allowance.

Answer 46

no but if an applicant does not satisfy the MEANS TEST but can demonstrate that they GENUINELY CANNOT FUND THEIR DEFENCE, the applicant may ask that their entitlement to criminal legal aid be reviewed on the GROUNDS OF HARDSHIP by completing an application for review on the grounds of hardship (Form CRM16).

Answer 47

mag = legal aid is either free or not available crown = legal aid is available but may be subject to the D contributing towards the costs

Answer 48

criminal defence representation order

Answer 49

may be extended to cover an appeal to the Crown Court against conviction and/ or sentence

Answer 50

the representation order will extend automatically to cover the proceedings in the Crown Court

Answer 51

both mags and crown court

Answer 52

either by - adding further details to their original Form CRM14 and resubmitting this - or by requesting an appeal.

Answer 53

representation order Legal Aid Agency

Answer 54

CRM14 and if they do not automatically satisfy the means test they must submit CRM15 together with any supporting evidence

Answer 55

1. classification of the offence 2. the plea the defendant enters in respect of summary or either- way offences 3. the level of detail provided by the CPS of the prosecution case; and 4. whether public/ private funding has been secured.

Answer 56

- funding has not been finalised - where the prosecution has not been able to disclose any of their evidence case is adjourned and the judge make a decision on whether to bail or remand in custody

Answer 57

CPS = provide sufficient disclosure so the D can enter into a plea

Answer 58

- D enters into plea GUILTY PLEA ENTERED - if pleads guilty, CPS present facts of the case and record of previous convictions (if relevant) - if D is represented = plea in mitigation on the defendant’s behalf - either sentence straight away or adjourn if they want to obtain any reports before sentencing - if D pleads guilty but disputes the specific factual allegations = adjourn for Newton hearing NON GUILTY PLEA ENTERED - court fixes a date for trial - case management directions BOTH GUILTY + NON GUILTY PLEA = if adjourned, need to decide bail or remand in custody

Answer 59

GUILTY PLEA: - treated as having been tried summarily and convicted (so same procedure applies = CPS relevant facts, D's sol = plea of mitigation) BUT - mags decide whether they should sentence or remit to Crown because the sentencing powers of the mags are insufficient - may need to adjourn to see reports before sentencing - may need to adjourn awaiting for sentencing hearing at Crown NOT GUILTY PLEA - before anything else decide whether the D is tried in the mags or Crown = ‘plea before venue and allocation procedure’ - if adjourned, mags decide if remanded in custody or bail

Answer 60

preliminary hearing at mags then sent straight to crown mags decide whether on adjournment = bail or remanded

Answer 61

(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately) (b) obtaining details of the prosecution case from the CPS (for summary and either- way offences); (c) taking a statement from the client; (d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either- way offences); and (e) in the case of an either- way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the magistrates’ court or by the Crown Court, and advising the client about the advantages and disadvantages of each court; and (f) making an application for bail, where necessary

Answer 62

so that they may give timely advice to the defendant on their plea, which in part will be based on the strength of the case against them, and take instructions on what the prosecution witnesses are saying

Answer 63

IDPC - initial details of the prosecution case

Answer 64

the court must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it

Answer 65

(a) where the defendant was in police custody for the offence charged immediately before the first hearing in the magistrates’ court: (i) a summary of the circumstances of the offence; and (ii) the defendant’s criminal record, if any; or (b) in all other cases: (i) a summary of the circumstances of the offence; (ii) any account given by the defendant in interview, whether contained in that summary or in another document; (iii) any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence; (iv) the defendant’s criminal record, if any; and (v) if available, a victim impact statement.

Answer 66

- the list of material expands - the following material should be made available before the first hearing at the mags: (a) a SUMMARY of the circumstances of the offence and any account given by the defendant in interview; (b) STATEMENTS AND EXHIBITS that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report; (c) an indication of any medical or other EXPERT EVIDENCE that the prosecution is likely to adduce in relation to a victim or the defendant; (d) any information as to SPECIAL MEASURES, BAD CHARACTER AND HEARSAY, where applicable

Answer 67

1. the client's response to the prosecution case 2. the strength of the prosecution's case 3. Whether it is necessary to obtain any further evidence in support of the defendant’s case. 4. Where the client has been charged with an either- way offence and is pleading not guilty - are they electing for the case to be heard in the mags or in the crown? also appropriate for the sol to raise that an early guilty plea may reduce sentencing

Answer 68

yes but the sol is limited due to their overriding duty not to mislead the court - able to cross- examine prosecution witnesses - able to put the prosecution to proof of their case, - would be able to make a submission of no case to answer at the end of the prosecution case and to ask the magistrates to dismiss the case e.g. if the prosecution failed to discharge their evidential burden however - unable to continue acting if the submission of no case to answer was unsuccessful and the D insisted on entering the witness box to give evidence which the solicitor knew to be false

Answer 69

- up to 12 months for a single offence

Answer 70

if you've been remanded in custody prior to the first hearing, in a period of adjournment you are likely to stay remanded in custody same applies to bail

Answer 71

(a) the defendant is sent to the Crown Court for trial for a RELATED offence; (b) the defendant is CHARGED JOINTLY with another adult defendant who is sent to the Crown Court for trial for a RELATED offence; (c) the defendant is charged jointly, or charged with a RELATED either- way offence, with a YOUTH defendant who is sent to the Crown Court for trial. In all other cases where a not guilty plea is indicated (or where the defendant refuses to enter a plea, as they are entitled to do), the court must determine whether the offence appears more suitable for summary trial or trial on indictment,

Answer 72

no - will be treated as if entered plea of not-guilty

Answer 73

limited number of circumstances, including serious/ complex fraud cases; some cases involving children and an either- way offence LINKED to an offence triable only on indictment.

Answer 74

- the mags continue with allocation of the offence to which the defendant has indicated a not guilty plea - to the offence the D has plead guilty = either sentence, commit or adjourn note this is as long as the two separate offences are NOT LINKED

Answer 75

(a) a remand in custody; (b) a remand on bail with conditions attached to that bail; or (c) a remand on unconditional bail.

Answer 76

- not more than 8 clear days at a time - if mags + successive remands > the defendant needs to be brought before the court on every fourth remand application , provided they have consented to this and have legal representation - otherwise, the court may remand a D in custody for 28 days if: (a) it has previously remanded them in custody for the same offence; and (b) they are before the court; and (c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.

Answer 77

- summary- only offence = 56 days before trial - either- way offence = 70 days before trial HOWEVER if the allocation hearing takes place within 56 days, the custody time limit for the either- way offence is reduced to 56 days - once the remand custody time limit has expired > must be released on bail until trial

Answer 78

1. on the BOP that there is GOOD + SUFFICIENT CAUSE to do this 2. they have acted with DUE DILIGENCE and EXPEDITION - app can be made orally and in writing - written notice of intention to apply for extension MUST be served on the Court and the D NOT LESS THAN 2 DAYS BEFORE before the hearing in the mags - if application is rejected > P can appeal to the Crown - if application to extend is granted > D can appeal to the Crown

Answer 79

1. prison 2. remand centre 3. police custody for up to 3 days - if this is necessary for the purposes of making ENQUIRIES in relation to OFFENCES OTHER THAN the offence for which the defendant has been charged e.g. where D has been arrested for one offence, but the police suspect their involvement in other matters and wish to interview them note - whilst remanded in police custody, the D is entitled to the same rights as if they had been arrested and detained prior to charge - once the need to make further enquiries has ceased, the remanded D must be brought before the Mags

Answer 80

until the case comes before the Crown Court

Answer 81

- remanded in custody = for successive periods of not more than 3 weeks - remanded on bail = this may be for successive periods of not more than 4 weeks

Answer 82

(a) ALL defendants PRIOR TO CONVICTION (b) defendants who have been convicted if their case has been ADJOURNED FOR PSR (c) defendants who are appearing before the court for BREACH OF COMMUNITY SENTENCE

Answer 83

1. COMMITTED TO CROWN for sentence 2. APPEALING against conviction or sentence 3. D's charged with the MOST SERIOUS OFFENCES - if D IS CHARGED with one of the below or HAS BEEN PREVIOUSLY CHARGED with one of the below a court may grant bail to that defendant only if EXCEPTIONAL circumstances exist - the specified offences are: (a) murder (b) attempted murder (c) manslaughter (d) rape (e) attempted rape (f) a number of other serious sexual offences. NOTE any of the above Ds can still apply for bail but they will bear the burden of convincing the court they should be granted bail

Answer 84

only a Crown Court judge - the mags then transfers the D to the Crown - the Crown must then decide within 48 hrs whether to grant bail - bail MAY NOT be granted here, unless the court is of the opinion that there is NO SIGNIFICANT RISK of the defendant committing, whilst on bail, an offence LIKELY TO CAUSE physical or mental INJURY to another

Answer 85

'no real prospect of custody' restriction (a) the defendant has attained the age of 18; (b) the defendant has not been convicted of an offence in those proceedings; and (c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings. In such circumstances, a magistrates’ court will not have power to remand a defendant in custody before his case is dealt with.

Answer 86

1. if the COURT IS SATISFIED that there are SUBSTANTIAL GROUNDS for believing that the defendant, if released on bail (whether subject to conditions or not) WOULD: (a) FAIL TO SURRENDER to custody, or (b) COMMIT an OFFENCE while on bail, or (c) INTERFERE with witnesses or otherwise OBSTRUCT the course of justice, whether in relation to himself or any other person. NOTE ^ is a high threshold - if the court thinks the D MAY do any of the three things = NOT SATISFIED 2. need not be granted bail if the court is satisfied the D should be kept in custody for their OWN PROTECTION, or if child/young person, for their own WELFARE 3. D need not be granted bail where it has NOT been practicable to obtain SUFFICIENT INFORMATION for the purpose of taking the decisions required regarding bail 4. The defendant need not be granted bail if, having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested in pursuance of section 7. (i.e. where a person released on bail has then REFUSED TO SURRENDER to custody when told to do so) 5. if arrested on MURDER = . the court must be satisfied NO SIGNIFICANT RISK of the defendant committing, whilst on bail, an offence likely to cause physical or mental INJURY to another

Answer 87

(a) the NATURE AND SERIOUSNESS of the offence (and the probable sentence the defendant will receive for it) - if a v serious offence and CPS case is strong = arguably more likely to abscond (b) the CHARACTER, antecedents, associations and COMMUNITY TIES of the defendant - previous convictions - also relevant where the reason for the offence is ongoing e.g. D shoplifts to pay for heroine addiction - associations with criminals - associations - if witness known to the D = argument D may try to interfere - no community ties e.g no fixed abode, no relatives or only lived in the area for a short time = no tie to the area = likely to abscond and therefore wont surrender to custody (c) the defendant’s RECORD IN RESPECT OF PREVIOUS GRANTS OF BAIL in criminal proceedings; and (d) the STRENGTH OF EVIDENCE against the defendant.

Answer 88

(a) failure to surrender (if the defendant has previously failed to surrender); (b) commission of further offences (if the instant offence was committed on bail); (c) fear of commission of offences likely to cause another person to suffer or fear physical or mental injury; (d) defendant’s own protection (or welfare if a youth) (e) defendant serving custody (f) fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice (if the defendant has been arrested for breach of bail in respect of the instant offence); and (g) lack of sufficient information. [instant offence = the offence which sentence is being decided on]

Answer 89

(a) the defendant was granted bail in PREVIOUS criminal proceedings but FAILED TO ANSWER this bail and the court believes that, if granted bail in the current proceedings, the defendant would again fail to surrender to custody; (b) the defendant needs to be kept in custody for his OWN PROTECTION or, in the case of a defendant under 18 years of age, for his own WELFARE (c) the defendant is CURRETNLY SERVING A CUSTODIAL SENTENCE in respect of a separate offence; or (d) the defendant was granted bail at an EARLIER HEARING IN THE SAME PROCEEDINGS, but has been arrested either for failing to answer his bail or for breaking any conditions of his bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the defendant would fail to surrender to custody, commit an offence or interfere with witnesses or otherwise obstruct the course of justice.

Answer 90

1. prevent D from absconding 2. prevent the D from committing further offences whilst on bail 3. prevent the defendant interfering with witnesses or obstructing the course of justice; 4. ensure that the defendant makes himself available for the purpose of obtaining medical or other reports; 5. ensure that the defendant keeps an appointment with his solicitor; or 6. ensure the defendant’s own protection or, in the case of a defendant aged under 18, for his own welfare or in his own interests.

Answer 91

monitor compliance with another bail condition e.g. curfew or an exclusion zone

Answer 92

1. without the EM requirements, the D would not be granted bail AND 2. the necessary arrangements for electronic monitoring are in place

Answer 93

high may only be considered by the court once it is satisfied it would otherwise remand the person into custody

Answer 94

12 and over the imposition for juveniles aged 12 and over is much stricter than it is for adults

Answer 95

- a record of the mags decision + their reasoning regarding bail - a copy of it must be given to the party who's bail app has been refused (either D or CPS)

Answer 96

- P tell D they will raise objection to bail - P apply to mags for remand in custody - P outline the grounds on which they believe bail should be refused + factors in support - D reply to each ground and set out why it is not satisfied - D suggest conditional bail where appropriate - witnesses in support e.g. surety - decision taken by the mags - both P and D can appeal if the decision does not go their way

Answer 97

- one full app to mags - one full app to crown - then new matters of fact or law would need to come to light

Answer 98

- under duty to consider bail at any subsequent hearing if: i) D still in custody ii) presumption in favour of bail still applies BUT this does not mean the D's sol can keep making full bail applications

Answer 99

certificate of full argument

Answer 100

- most defence solicitors will usually delay making an appeal to the Crown Court until they have made two full applications for bail before the magistrates’ court as this maximises the number of potentially successful applications (end up with 3 full hearings instead of 2)

Answer 101

- notice of application (on the prescribed form) as soon as practicable - copy of the application needs to go to the mags, the Crown, the CPS and any surety affected or proposed - the notice will state the decision the D wants the Crown to make for each offence the D has been charged with e.g. grant bail or vary a bail condition - notice should set out reasons why Crown should grant bail/vary - notice should also set out any suggested conditions to bail - if P opposes the appeal they should notify the Crown and include reasons for their opposition

Answer 102

- as soon as practicable - no later than the business day after it was served (although the Crown can vary these time limits)

Answer 103

(a) the notice of application; (b) the ‘certificate of full argument’; and (c) a record of the defendant’s previous convictions (if applicable).

Answer 104

Crown Court chambers

Answer 105

prison or remand centre where the defendant is being held so that the defendant may be released from custody

Answer 106

* Oral notice = end of bail hearing during + before the defendant is released from custody. * confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal. * The Crown Court must hear the appeal as soon as possible and not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing).

Answer 107

remanded in custody until the appeal is heard

Answer 108

- this power should be used ‘judiciously and responsibly’ - the power to appeal is not to be used merely because the Crown Prosecutor disagrees with the decision - ‘it should only be used in cases of grave concern.’

Answer 109

- mags issues an arrest warrant - the warrant will either be: i) backed by bail - means that the police, having arrested the defendant, will then release them again pending their next court appearance ii) not backed with bail (more common) - the police must arrest the defendant and then keep them in police custody until they can be brought before the court brought before the mags at the next hearing

Answer 110

- specially arranged remand court organised for the Saturday - no such arrangement on a Sunday, so if D arrested on Saturday night they would remanded in police custody until the Monday

Answer 111

option 1: if in breach of police bail = CPS decides whether to charge they for failing to surrender to custody option 2: if in breach of court bail = decision is with the court on whether to commence proceedings

Answer 112

(a) If the defendant fails WITHOUT REASONABLE CAUSE to surrender to custody, they will be guilty of the offence of absconding, contrary to s 6(1). R v Scott (1/2 an hour late to a hearing) (b) If the defendant did have a reasonable cause for failing to surrender, they will still be guilty of an offence under s 6(2) UNLESS they surrendered to custody AS SOON AS IT WAS REASONABLY PRACTICABLE for them to do so. e.g. Kevin is unable to answer his bail because he is injured in a road traffic accident and has to go to hospital. Kevin will still be guilty of an offence under s 6(2) unless he answers his bail as soon as reasonably practicable after he has been discharged from hospital.

Answer 113

depending on the facts of the case it may be appropriate to sentence D immediately or wait until the end of the substantive case

Answer 114

Even if the magistrates decide not to impose a separate penalty for the absconding offence, they may decide to refuse the defendant bail in the substantive proceedings, or grant bail but with a much more stringent package of conditions.

Answer 115

FALSE - breaching a condition other than the condition to attend the next court hearing e.g. breach of curfew is not a criminal offence -but likely to have bail reviewed by the magistrates, who may decide that the failure to comply with the conditions requires a remand in custody.

Answer 116

(a) is not likely to SURRENDER to bail; or (b) has broken, or is likely to break, their BAIL CONDITIONS - must be brought before mags within 24 hours. - mags decide to remand or bail - likely remanded unless persuaded to grant bail with more stringent conditions

Answer 117

true - but only a presumption

Answer 118

- D is not oblige to put any evidence before the court to show that they are innocent unless they are raising a specific defence e.g. alibi - where they raise a specific defence = must place some evidence of that defence before the court if they want the magistrates or jury to consider that defence when deciding the verdict (this is the D's evidential burden) - then it falls back to the P to prove beyond all reasonable doubt the defence is not true

Answer 119

- Section 78 of PACE 1984 - discretionary - exclude = if ‘the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’ - SIGNIFICANT AND SUBSTANTIAL of PACE/Codes of Practice - Only if the court declines to exercise its discretion under s 78 should the solicitor then consider: i) cross- examination + undermining the evidence ii) what representations to make to the court in respect of the Turnbull guidelines

Answer 120

- a witness for the CPS makes a positive identification of the defendant - e.g. informally, at a formal ID procedure, or claiming the D is someone previously known to them - the Turnbull guidelines will apply only if the defendant DISPUTED the visual identification made by the witness

Answer 121

1. length of time 2. distance 3. lighting 4. conditions 5. how much of the suspect's face did the witness actually see? 6. Whether the person identified was someone who was already known to the witness (a recognition case), or someone the witness had never seen before. 7. How closely does the original description given by the witness to the police match the actual physical appearance of the defendant?

Answer 122

- in summing up > judge gives Turnbull warning the judge will tell the jury that it is very easy for an honest witness to be mistaken as to identity, and will direct the jury to examine closely the circumstances of the original sighting and take into account the factors listed above when considering the quality of the identification evidence

Answer 123

- turnbull warning + judge tells about weaknesses of the evidence - tell the jury to look for other supporting evidence - the jury will be directed to what other evidence may amount to supporting evidence - Examples of supporting evidence include: (a) a confession made by the defendant; (b) other evidence placing the defendant at the scene of the offence (such as fingerprints or DNA evidence); (c) in a theft case, stolen property being found in the defendant’s possession; (d) adverse inferences being drawn from the defendant’s silence when questioned at the police station.

Answer 124

- the judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant - this will normally follow a submission of no case to answer being made by the defendant’s advocate

Answer 125

- the magistrate is deciding on matters of fact and law whereas when it is a trial by jury the jury decides on the facts and the judge decides on the law - this means it is up to the defence's sol to address the mags on the Turnbull guidelines (as opposed to the judge addressing the jury on it)

Answer 126

- broadly - the court is only likely to exercise its discretion to exclude prosecution evidence under s 78 if there is something unreliable about the evidence which the police have obtained, which in turn means that it would be unfair to allow the CPS to rely on such evidence - if the evidence is relevant to the charge faced by the defendant, and there is nothing in the way in which it has been obtained which casts doubt on its reliability, the evidence is unlikely to be excluded under s 78, even if the police have breached the provisions of PACE 1984 and/ or the Codes of Practice when obtaining it - s78 applications will only be granted where the police's breach is ‘significant and substantial’ - also article 6 ECHR factors 'right to a fair trial' > key question is whether the proceedings as a whole were fair

Answer 127

- r v sang confirmed there is no defence known s entrapment - instead, in order to challenge the admissibility of the evidence, the court should be invited to exercise its common law power to stop the case on the basis that it would represent an abuse of process to allow such a prosecution to continue - combined appeal of R v Loosely; AG’s Reference No 3 of 2000 the undercover officers had lured the D to commit an offence and then prosecuted them for it which the court said was an abuse of power - this case provided guidelines to judges when deciding whether or not to stay proceedings for an abuse of power: (1) The nature of the investigation – the more intrusive the investigation, the harder the courts should scrutinise it. (2) The nature of the offence. Certain offences can only be committed in a covert way such as drug trafficking and therefore police can only crack them in a covert way. (3) The nature of the police involvement. For example, how they behaved, how persistent they were in trying to persuade the defendant to take part in the offence, for example did they behave like a ‘normal customer’ might and no more. (4) The defendant’s criminal record – usually this would not be relevant unless there was evidence of recent similar involvement. (5) The level and extent of supervision of the undercover officers.

Answer 128

(a) a witness HAS IDENTIFIED or purported to have identified a suspect; or (b) a witness THINKS THEY CAN identify the suspect, or there is a reasonable chance that the witness can identify the suspect, AND THE SUSPECT DISPUTES being the person the witness claims to have seen, unless - it is not practicable or - would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence (c) must also be held if a witness to a crime has purported to identify the suspect IN THE STREET SOME TIME AFTER the crime was committed

Answer 129

(a) video identification; (b) an identification parade; (c) a group identification; and (d) confrontation by a witness.

Answer 130

suspect should initially be offered a video identification unless: (a) it is not practicable; (b) ID parader more practicable and suitable or (c) the officer in charge of the investigation considers that a group identification is more suitable decision made by investigating officer + identification officer

Answer 131

- relevant to previous offenders (who the police will have pictures of) - before a witness is shown any photographs, that witness’ first description of the suspect must have been recorded - the witness must be shown 12 photographs at a time - as soon as the witness makes a positive identification, no other witnesses should be shown the photographs - the witness who made the identification and any other witnesses should then be asked to take part in one of the four identification procedures - the suspect of their sol must be informed that the witness attending the identification procedure has been shown photographs, or a computerised or artist’s composite - if the case goes to trial, when giving evidence the witness will not be allowed to say that they originally identified the suspect from photographs shown to them by the police

Answer 132

- suspect + at least 8 other people - so far as possible, resemble the suspect in age, general appearance and position in life - where two suspects (in the same ID procedure) of roughly similar appearance are shown in the same images = at least 12 other people - must be in the same positions or carrying out the same sequence of movements - the suspect or their sol must be given the chance to inspect the images before they are shown to a witness - If there is a ‘reasonable objection’ to the images or to any of the other participants, the police must take steps, if practicable, to remove the grounds for objection - if a suspect has any unusual features (such as a facial scar, a tattoo or distinctive hair style or colour) which do not appear on the images of the other people = conceal or replicate on others - note the witness can ask for the concealment/replication to be removed - the suspect's sol should be given reasonable notice of when the video will be recorded so they can attend - only one witness should see the video at once - video can be frozen and can be seen an unlimited amount of times by the witness - Before they see the set of images, witnesses must not be able to: (a) communicate with each other about the case; (b) see any of the images which are to be shown; (c) see, or be reminded of, any photograph or description of the suspect, or be given any other indication as to the suspect’s identity; or (d) overhear a witness who has already seen the material - the police should not inform subsequent witnesses about any previous positive identifications

Answer 133

- at least 8 people (in addition to the suspect) - who, so far as possible, resemble the suspect in age, height, general appearance and position inlife - same provisions re distinct features - police must ensure that prior to the parade the witness must not: (a) communicate with each other about the case, or overhear a witness who has already seen the identification parade; (b) see any member of the identification parade; (c) see, or be reminded of, any photograph or description of the suspect, or be given any other indication as to the suspect’s identity; or (d) see the suspect before or after the identification parade - the suspect can choose their position in the line and alter their position in between witnesses (their sol should inform them of this) - witness should be told not to make a decision about a suspect before they have looked at the line twice - witness can ask a suspect to move/speak/stand in certain way but before the member of the parade does so the police should ask whether the witness can identify just based on appearance - asking to speak etc > judge will direct jury to treat the evidence with the utmost caution - colour photo or video should be taken of each lineup

Answer 134

- video procedure and identification parade = no cannot be compelled - group identification = can be done covertly if the suspect does not consent - confrontation = can compel

Answer 135

- held in a place where other people are passing by or waiting around informally - the suspect should join - the witness should be able to see the suspect and the others at the same time - the other people's appearance should be broadly similar to that of the suspect but other than that no obligation for likeness - if done covertly, the police will be required to take the witness to a place where the suspect is likely to be at a given time

Answer 136

- when a witness is brought face- to- face with a suspect in the police station - Prior to a confrontation taking place, the witness must be told that the person they saw may, or may not, be the person they are to confront and that if they are not that person, the witness should say so - suspect's sol can be there whilst it takes place - usually occurs where the suspect hasn't agreed to other identification procedures

Answer 137

inspector note - must be in uniform throughout the identification procedure

Answer 138

‘it must be held as soon as practicable’.

Answer 139

If the police decide to hold an identification procedure, the suspect will normally be released on police bail with a requirement to re- attend the police station at a later date when the identification procedure will take place.

Answer 140

the investigating officer

Answer 141

defene sol should ask the witness if they have discussed the description of the offender with anyone, either before attending or whilst at the police station They should also ask that a note of their concerns be made by the identification officer in the written record of the identification procedure.

Answer 142

- should ensure the |ID officer complies with procedural requirements and any objections are noted by the ID officer - any comments made during the procedure (whether by the witness, the identification officer or anyone else) should also be recorded.

Answer 143

‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it’ - statement = ‘any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’ - the purpose, or one of the purposes, of the person making the statement = cause the other person to believe the matter - - R v Knight (diary entries - the girl hadn't intended anyone to read them so they fell outside the scope of hearsay)

Answer 144

i) first hand = e.g D makes statement to police officer ii) multiple = details/statements have passed through multiple people effect = the circumstances in which a statement containing multiple hearsay is admissible in evidence are more limited than when a statement contains only first- hand hearsay

Answer 145

- using a set of prescribed forms - as part of the standard directions, the court will impose time limits for the CPS and the defendant to give notice

Answer 146

- the court will usually determine the admissibility of such evidence at a pre- trial hearing

Answer 147

- a confession may sometimes also include a statement which is favourable to the defendant - the whole statement = admissible

Answer 148

- if the co-defendant has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the D = any evidence given implicating the defendant in the commission of the offence will be admissible in evidence against the defendant

Answer 149

- admissibility will be determined by the trial judge in the absence of the jury at a voir dire (a trial within a trial) - will hear from both the prosecution and defence and the officer whom the confession is alleged to have been made - judge makes a ruling - if judge decides inadmissible > the jury hear nothing about the confession - if admissible > officer who the confession was made to will give evidence to the jury - the D can still attack the evidence in an attempt to persuade the jury to give little weight to it

Answer 150

- a ruling on admissibility is sought when the interviewing officer is giving evidence 3 scenarios: 1. D seeks to exclude evidence of the confession under s 76(2) of PACE = mags must hold a voir dire 2. D raises submissions under s 76(2) and s 78 = both arguments should be dealt with at the same voir dire 3. If the defendant seeks to rely only on s 78 = no obligation to hold a voir dire - a challenge to the admissibility of the confession may be left either to the close of the prosecution case (if the defendant’s solicitor wishes to make a submission of no case to answer), or to the end of the trial when the defendant’s solicitor makes their closing speech

Answer 151

- the exclusion of confession evidence will not affect the admissibility in evidence of any facts discovered as a result of the confession (s 76(4) PACE 1984) - however, the CPS will not be able to tell the court that such facts were discovered as a result of a confession made by the defendant

Answer 152

- two categories: i) the sexual offences category, which specifies a number of sexual offences committed against children under 16 years of age ii) the theft category including: (i) theft (ii) robbery (iii) burglary (iv) aggravated burglary (v) taking a motor vehicle or conveyance without authority (vi) aggravated vehicle taking (vii) handling stolen goods (viii) going equipped for stealing (ix) making off without payment (x) any attempt to commit any of the above substantive offences (xi) aiding, abetting, counselling, procuring or inciting the commission of any of the above offences.

Answer 153

- such an adverse effect on the fairness of the proceedings that the court ought not to admit it - similar to s 78 PACE but with s 78 the court has discretion to exclude the evidence, whereas here the court MUST exclude it under this EXAMPLES of where s 101(3) is likely to apply: (a) when the nature of a defendant’s previous convictions is such that the jury are likely to CONVICT a defendant ON THE BASIS OF THESE CONVICTIONS ALONE, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative (b) when the CPS seeks to adduce previous convictions to support a case which is OTHERWISE WEAK (c) when the defendant’s previous convictions are 'SPENT' - see timescales attached

Answer 154

- other than (d) and (g) - bad character evidence under gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of these gateways are satisfied

Answer 155

s 107 allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’ Contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character. Section 107 does not apply to trials in the magistrates’ court.

Answer 156

- notice must be given to court + other parties - prescribed form with a written record of the previous convictions - if a D opposes the introduction of bad character evidence > D must apply to the court for such evidence to be excluded - must be sent to court and the other side

Answer 157

- very limited grounds set out in s 100 (1) CJA 2003: (a) it is important EXPLANATORY evidence, (b) it has SUBSTANTIAL PROBATIVE VALUE in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties AGREE to the evidence being admissible.

Answer 158

- previous convictions of a witness to support an allegation that either: (a) the witness is LYING or has FABRICATED EVIDENCE against the defendant; or (b) the WITNESS THEMSELVES IS GUILTY/has been involed in the offence with which the defendant has been charged - nature of previoous convictions - time that has elapsed since they were committed - if the suggestion is the witness themselves are guilty = the court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time (for their previous convictions)

Answer 159

The evidence will be important explanatory evidence only if: (a) without it, the court or jury would find it IMPOSSIBLE OR DIFFICULT TO PROPERLY UNDERSTAND other evidence in the case; and (b) its VALUE FOR UNDERSTANDING the case as a whole is SUSTANTIAL - substantial = more than merely trivial or marginal note - leave of the court (permission) will be required

Answer 160

- this is for a party other than the defendant - e.g. witness or victim (a) convictions for offences where the witness has made a FALSE STATEMENT OR REPRESENTATION or (b) convictions where the witness has been found guilty of an offence to which they pleaded NOT GUILTY but were convicted following a trial at which their version of events was disbelieved - would be admitted into evidence under substantial probative value - have regard to the nature of the previous offences and when they took place NOTE a different approach is taken here than to gateway (d) of bad character evidence for the defendant. - dishonesty is sufficient here (whereas it is not in gateway (d))

Answer 161

- usually at the same hearing at which the defendant enters their plea of not guilty (and, for an either- way offence, after the plea before venue/ allocation hearing) - or sometimes at a subsequent hearing

Answer 162

Magistrates’ Court Trial Preparation Form

Answer 163

- the court will issue a summons where: i) it is satisfied that the witness can give MATERIAL EVIDENCE in the proceedings and ii) it is in the INTERESTS OF JUSTICE for a summons to be issued - a D's sol will usually write to a witness to confirm their attendance > if negative response received > can obtain witness summons

Answer 164

1. serve a defence statement 2. serve a notice to the Crown Prosecution Service (CPS) detailing the names, addresses, and dates of birth of any witnesses they intend to call - the CPS can then interview these witnesses but there are guidelines on how this should be done - notice = within 28 days - failure to comply = adverse inferences

Answer 165

- no unless it is expert evidence - expert evidence must be served on the CPS

Answer 166

- witnesses who's evidence is not in dispute do not need to attend - a written statement can be used in court instead provided the statement is: i) signed ii) declaration of truth iii) has been shared with all parties before the trial iv) none of the other parties has objected within 7 days - if any objections to the content of the written statement and if wish to cross examine = object within 7 days - called a section 9 witness statement

Answer 167

witness statement

Answer 168

1. common assault 2. taking a conveyance without consent 3. driving whilst disqualified 4. criminal damage 5. where summary offence punishable by imprisonment or disqual. from driving 6. appears to be related to the either way - if sent to crown alongside either way > only sentencing powers of mags when sentencing the summary offence

Answer 169

1. trial can be held at the Crown court - note the sentencing powers of the Crown for the summary offence are capped at the mags powers 2. remitted back to the mags

Answer 170

- indictable offence but only if: (a) there are case management issues which the Crown Court needs to resolve; (b) the trial is likely to exceed four weeks; (c) it is desirable to set an early trial date; (d) the defendant is under 18 years of age; or (e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing. - the preliminary hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court

Answer 171

- enable the D to enter their plea - if they are pleading not guilty > judge gives further case management directions - no prelim hearing > PTPH should take place within 20 business days of the sending (from the mags)

Answer 172

- the counts on indictment will be put before the D - the counts the D pleads guilty to > jury not told about - a D facing multiple charges may agree with the CPS to plead guilty to certain charges in exchange for the CPS not pursuing others - at the arraignment, the CPS may offer no evidence on the charges they are dropping, and the judge will enter a not guilty verdict on those charges, formally discharging the D - the CPS may choose for some counts to "lie on the court file" rather than offering no evidence - this occurs when the CPS has strong evidence for the serious charges but agrees to leave lesser charges on file if the defendant pleads guilty to the more serious ones - a not guilty verdict is not entered, and with the court's permission, the CPS could potentially reopen the case at a later time - if D pleads guilty, Crown may sentence then, or adjourn awaiting pre-sentence report or arrange a Newton hearing - if for some reason, arraignment hasn't yet taken place before the trial, it will take place before the jury is empanelled

Answer 173

- only called a goodyear indication in the crown - judge may at the PTPH give a D an advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage - D must specifically ask for such an indication - if the judge gives an indication and the defendant then enters a guilty plea, the indication given by the judge will be bindin

Answer 174

- a list of cases awaiting trial that have not been given a fixed date for the trial to start

Answer 175

- at any time before the jury return their verdict (this is at the judge's discretion) - during the trial if the judge makes a ruling on a point of law or the admissibility of a piece of evidence which deprives the defendant of a defence on which they wanted to rely - defendant must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application to change a plea of guilty (eg if the defendant had misunderstood the prosecution case)

Answer 176

- serve on the defendant all the evidence on which it wishes to rely at trial to prove the defendant’s guilt - CPS has continuing obligation to retain unused materials - obligation to disclose unused where not guilty plea + s.3 test: ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused'

Answer 177

- they can request disclosure of any ‘missing’ items when drafting the defence statement - if the CPS refuses disclosure of these items, the solicitor may apply to the court to request the specific disclosure - defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possession which it has not subsequently disclosed

Answer 178

- sensitive items: (a) national security or intelligence; (b) identity of police informants or undercover police officers; (c) techniques and methods relied upon by the police and (d) material relating to a child witness - the CPS can make an app to the court for a finding that it is not obliged to disclose the relevant material because it is protected by 'public interest immunity' - these apps will often be made ex parte (without notice to the defendant)

Answer 179

- more limited than the CPS - Crown > defence statement - failure to provide > adverse infererences - ongoing obligation to update the defence statement if new facts come to light

Answer 180

- mags = within 10 business days of the CPS making initial disclosure of any unused material - D's sol should consider serving a defence statement on the CPS only if they think that the CPS will, in the light of the information disclosed in the statement, be in a position to disclose additional unused material that may assist the defence case - crown = 20 days + compulsory disclosure of defence statement - if complex case and 20 is insufficient = can apply to court for more time

Answer 181

true - D's sol should therefore ensure the D has seen and approved the defence statement before it is served

Answer 182

- not technically mandatory - obligatory for Ds pleading not guilty in the Crown - if there are any ‘faults’ in disclosure given by the defence, the court may draw adverse inferences - 'faults': (a) failing to provide a defence statement at all; (b) late service (c) incomplete; (d) not consistent with the defence put forward at trial (e) failing to update If any of these faults occurs the court or, with leave, any other party (such as the prosecution or any co- accused) may make such comments as appear appropriate, and the court or jury may draw such inferences as appear proper when deciding whether the defendant is guilty.

Answer 183

- s.51 hearing - also known as a sending hearing - to determine whether there are related offences which should also be sent to the Crown Court

Answer 184

the galbraith test: (a) the prosecution has failed to put forward evidence to prove an ESSENTIAL ELEMENT of the alleged offence; or (b) the evidence produced by the prosecution has been so DISCREDITED AS A RESULT OF CROSS EXAMINATION, or is so MANIFESTLY UNRELIABLE, that NO REASONABLE TRIBUNAL COULD SAFELY CONVICT on it.

Answer 185

compellable

Answer 186

avoids s.35 adverse inference

Answer 187

before any other of the defence witnesses (unless the court otherwise directs) - note all other witnesses aren't allowed in court until they have testified to avoid the risk of collusion

Answer 188

most trials in the mags = bench of three mags decision doesn't have to be unanimous

Answer 189

admissibility = will the evidence go in cogency = evidence has gone in, so this is referring to the weight the judge/jury gives to it (Turnbull warnings become applicable)

Answer 190

- only if the defence intends to call more witnesses than just the D

Answer 191

- unanimous - although a majority verdict of 11:1 or 10:2 will be accepted if, after at least 2 hours and 10 minutes, unanimity is not possible - note the judge will wait longer if the case is complex - if any jurors have been discharged during the trial then the majority verdict requirements reflect this, so where there were only 11 jurors, the majority must be 10:1 - where there are only nine jurors (two jurors discharged) then only a unanimous verdict is acceptable

Answer 192

mags = Your Worships DJ = Judge circuit judge = Your Honour HC judge = My Lord / My Lady

Answer 193

* juvenile client in the youth court; * videolink * special measures * when making a bail appeal before a judge in chambers in the Crown Court

Answer 194

- to allow the witness to tell their story - open non-leading questions

Answer 195

- suggesting to a witness that the version of events which that witness has just put forward in examination- in- chief is incorrect and suggesting an alternative version of events - it is always necessary for an advocate to put their client’s version of events to a witness in cross- examination - e.g. in an assault case where the defendant is claiming they acted only in self- defence, the defendant’s solicitor must, when cross- examining the alleged victim of the assault, put to the victim that they (the victim) attacked the defendant first and that the defendant was acting only in self- defence - if the defendant’s solicitor fails to put to the witness that the defendant was acting in self- defence, the defendant will then not be entitled to enter the witness box and say that they were acting in self- defence

Answer 196

closed and leading questions

Answer 197

- should only be in relation to matters that have arisen in cross- examination and as with examination- in- chief - only open, non- leading questions are allowed

Answer 198

- general rule = all persons are competent to give evidence at a criminal trial EXCEPTIONS: - not able to... (a) understand questions put to him as a witness; and (b) give answers to them which can be understood. - e.g. children > although age is not determinative (only issue is whether the witness can provide intelligible testimony) - but they dont get sworn in until the age of 14 - where a D has defective intellect, they may be able to provide unsworn evidence, so long as they can meet the above test for competence

Answer 199

- general rule = all competent persons are compellable exceptions: - the ACCUSED = not compellable for P - CO-Ds = not compellable unless 1. AG files formal notice abandoning the prosecution 2. separate trials > first D can be called for second Ds trial > but not vice versa 3. one D = formally acquitted 4. one D pleads guilty > gives evidence against the coaccused (severance) - SPOUSE is not compellable unless: * involves assault/injury or threat of, to the spouse or a person who was under l6; or * the charge is a sexual offence, or such an attempted offence involving a person under l6 or aiding and abetting such offences.

Answer 200

(a) under 18; (b) mental/physical disorder or disability likely to affect their evidence; (c) evidence likely to be affected by their fear or distress at giving evidence (d) complainants in sexual offences; (e) witnesses in specified gun and knife crimes - up to the court to determine if you fall into one - victims of sexual offences AUTOMATICALLY eligible - can reject such assistance from the court

Answer 201

to warn the jury that the fact that special measures have been used should not in any way prejudice them against the defendant or give rise to any suggestion that the defendant has behaved in any way improperly towards the witness

Answer 202

- five purposes of sentencing: 1. the punishment of offenders; 2. the reduction of crime 3. the reform and rehabilitation of offenders; 4. the protection of the public; and 5. the making of reparation by offenders to persons affected by their offence. BUT need not have regard to the above when: i) sentence is fixed by law (e.g. life imprisonment for murder) ii) offences subject to a statutory minimum iii) if the D is classed as a dangerous offender

Answer 203

- sentencing guidelines 1) seriousness 2) harm and culpability

Answer 204

- courts should pass the same sentence for the same type of offence - but in exception cases a court in a particular area may treat an offence more seriously than elsewhere - this may occur if the particular type of offence is prevalent in the area and the court has before it evidence that these offences are causing harm to the community at large

Answer 205

1. previous convictions - nature of previous convictions - time elapsed 2. offences committed whilst on bail 3. racial or religious aggravation 4. hostility based on sexual orientation or (physical or mental) disability

Answer 206

AGGRAVATING: (a) planned or premeditated; (b) operating in groups or gangs; (c) deliberate targeting of vulnerable groups (such as the elderly or disabled victims); (d) committed whilst under the influence of drink or drugs; (e) the use of a weapon; (f) deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence; (g) offences involving the abuse of a position of trust; (h) offences committed against those working in the public sector or providing a service to the public; (i) in property offences, the high value (including sentimental value) of property to the victim; and (j) failure to respond to previous sentences. MITIGATING: (a) D acted on impulse; (b) D experienced a greater degree of provocation than normally expected (c) Ds suffering from mental illness or physical disability (d) D particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others); (e) D played only a minor role in the offending; (f) Ds who were motivated by genuine fear; (g) Ds who have made attempts to make reparation to their victim.

Answer 207

- the court must ‘take into account’ the : i) STAGE in the proceedings at which the defendant gave their indication of a guilty plea and ii) the CIRCUMSTANCES in which the indication was given - applies to all Ds above 18 - the strength of either party's case = irrelevant - remorse of D = irrelevant

Answer 208

- only be available where a guilty plea is indicated at the ‘first stage of proceedings’ This will generally be: * first hearing in mags * first hearing in the mags where the case is then committed for sentence to the Crown * on indication of a guilty plea in the magistrates’ court to an offence triable only on indictment, followed by a guilty plea at the first hearing in the Crown - limited exceptions that may still entitle a D to this full reduction if it would have been unreasonable to expect the D to indicate a guilty plea at this first hearing

Answer 209

- where a guilty plea is entered into after the first stage of proceedings i.e. indicated at the PTPH - max reduction = quarter - the reduction should then be decreased from one quarter to a maximum of one tenth where a guilty plea is entered on the first day the trial was meant to take place (‘at the door of the court’) - this may be reduced further, even to zero, where the guilty plea is entered during the course of the trial NOTE: there must be an unequivocal indication of the Ds intention to plead guilty - an indication only that he is likely to plead guilty is not enough’

Answer 210

- where D being sentenced for multiple offences - total sentence is just and proportionate to their overall offending behavior

Answer 211

- concurrent = custodial terms are deemed to be served at the same time - consecutive = one custodial sentence will start after the other one has finished - if consecutive = usually some overall downward adjustment is required - if concurrent = usually some overall upward adjustment is required

Answer 212

* offences arise out of the same incident or facts; * there is a series of offences of the same or similar kind, especially when committed against the same person.

Answer 213

* offences arise out of unrelated facts or incidents; * offences committed in the same incident are distinct, involving an aggravating element that requires separate recognition; * offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences.

Answer 214

- if ‘in the circumstances of the case, it considers that it is unnecessary’ - e.g. where a custodial sentence is inevitable because of the seriousness of the offence - e.g. where the court already has a recent pre-sentence report for that offender note - there is a requirement for the court to obtain a pre-sentencing report before the court imposes a custodial sentence or community order but failure to do so will not invalidate the sentence

Answer 215

- penultimate stage in the sentencing process - involves speech by defence advocate but can also include character witnesses giving evidence and character letters - persuade the magistrates to impose a sentence which is less severe than the ‘starting point’ sentence

Answer 216

- sentencing pyramid below: * custody * suspended sentence * community sentence * fine * discharge (conditional or absolute).

Answer 217

- most give court discretion (unlike murder for example) - must apply custody threshold test: " .... neither a fine alone nor a community sentence can be justified for the offence..." - once passed - custodial sentence isn't automatically imposed - in R v Seed + R v Stark = where the custody threshold had only just been passed, a guilty plea or very strong personal mitigation might make it appropriate for a noncustodial sentence to be imposed - custody threshold does not apply where an offender fails to express a willingness to take part in a community sentence.

Answer 218

- a custodial sentence "must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more other offences associated with it" - mags max = 12 months - note if between 19–21 years, any custodial sentence will be served in a young offender institution

Answer 219

UP TO 2 YEARS: - automatically released - on licence for duration - post- sentence supervision for 12 months OVER 2 YEARS - automatically released at half - remaining half served on licence unless ‘offender of particular concern': e.g. terrorism or child sex offences - at halfway > release isn't automatic - have to apply for parole - then licence + supervision

Answer 220

- custodial sentence = 14 days - 2 yrs - suspended for = 6 months - 2 yrs - the period of suspension = 'operational period' - custody threshold must be met - but the specific circumstances justify the suspension - supervision period must end no later than the end of the operational period

Answer 221

- e.g. breach of requirements or committed new offence in operational period - if the suspended sentence was given in the mags = mags or crown - if s. sentence given in crown = only crown - must do one of the following: (a) order the custodial sentence originally suspended to take effect UNALTERED (b) order the custodial sentence to take effect, but for a SHORTER PERIOD (c) amend the original order by imposing MORE ONEROUS COMMUNITY REQUIREMENTS on the defendant; or (d) amend the original order by EXTENDING THE OPERATIONAL PERIOD, or by extending the supervision period. - court must make an order under (a) or (b) above unless it considers that it would be UNJUST TO DO SO in view of all the circumstances e.g. if, in the case of a defendant convicted of a further offence, the new offence is a minor matter or is a completely different type of offence to the offence originally committed - the court will take into account the time elapsed since the first offence and any change in D's circumstances - can also impose a fine of up to £2,500 for breach

Answer 222

The court must not make a community order unless it is of the opinion that— (a) the offence, or (b) the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order

Answer 223

1. unpaid work requirement - between 40 and 300 hours - must be completed within 12 months 2. activity requirement - e.g. finding work or repairing C's property 3. programme requirement - e.g. anger management, sex offending and substance abuse 4. prohibited activity requirement - D must refrain from certain activities 5. curfew requirement - electronically monitored 6. exclusion requirement - e.g. from pub - period not exceeding 2 years - electronically monitored 7. residence requirement 8. mental health treatment requirement 9. drug or alcohol rehabilitation requirement 10. supervision requirement - meetings with Probation Service 11. attendance centre requirement - attend a centre for between 12 and 36 hours - can be imposed on Ds under 25 12. foreign travel prohibition requirement

Answer 224

- warning from supervising officer of the Probation Service - if another breach within the following 12 months > supervising officer reports to the court (that sentenced in the first place) > D goes before that court - If the court is satisfied that the defendant has, WITHOUT REASONABLE EXCUSE, failed to comply with the requirements of the order, the court must: (a) AMEND the order so as to impose requirements on the defendant which are MORE ONEROUS (b) REVOKE the order completely and re- sentence the defendant for the offence, but without taking into account the usual custody threshold; or (c) where the defendant has WILLFULLY AND PERSISTENTLY failed to comply with the order, the court may revoke the order and impose a custodial sentence. This can be done even if the original offence was not punishable by way of a custodial sentence.

Answer 225

- where D pleads guilty but disputes the factual version of events put forward by the CPS - if the version of events could effect the sentence imposed the court must either: i) accept the defendant’s version of events, or ii) allow both the CPS and the D to call evidence so that the court can determine the true factual circumstances of the offence (Newton hearing)

Answer 226

- where CPS and D try to avoid Newton hearing by agreeing the facts on which D will be sentenced - usually instigated by the defence - purposes = remove aggravating factors that would appear in the contested fact pattern put forward by the CPS - needs to be accepted by the CPS and the sentencing judge - if the prosecution reject the basis of plea and the judge thinks the version of events is actually more serious > Newton hearing - if the judge thinks the basis of plea is patently absurd then sentencing will take place on the prosecution version of events without a Newton hearing taking place - sentencing judge is the final arbiter as to whether the basis of plea is accepted

Answer 227

(a) if they pleaded GUILTY, they may appeal against the SENTENCE they received; - on the basis it is EXCESSIVE - full rehearing of the issues (b) if they pleaded NOT GUILTY, they may appeal against any resulting CONVICTION AND/OR SENTENCE - on the basis that the magistrates MADE ERRORS OF FACT AND/OR LAW - recorder or a circuit judge will sit with an even number of magistrates - up to 4 mags can sit on appeal

Answer 228

- notice of appeal = not more than 15 business days from the magistrates passing sentence - serve notice on mags + CPS - mags representation order covers preparing the notice of appeal - if appeal granted = separate representation order needed

Answer 229

- may confirm, reverse or vary - same sentencing powers as mags

Answer 230

- appealing decisions of mags or crown - made to HC - can be made by D and CPS - grounds: i) ERROR IN LAW ii) or relevant court (either mags or crown) EXCEEDED THEIR JURISDICTION

Answer 231

- apply (to mags/crown) within 21 days of the relevant decision - clerk in conjunction with trial judge will prepare a draft ‘statement of case’ that will state: (a) decision in issue; (b) question(s) of law on which the opinion of the High Court will be asked; (c) include a succinct summary of history of proceedings + facts - draft of statement of case > CPS and D for review > suggest any amendments - final version sent to the party making the appeal - must then lodge with HC - give notice to other party it has been lodged

Answer 232

- divisional court of the QBD - usually heard by 3 judges - no evidence is given by witnesses - hearing confined to legal argument - based on the agreed facts set out in the statement of case - affirm, reverse or vary - remit back to the mags - or different bench of mags (if the case needs to be reheard)

Answer 233

- can be appealed from the HC > SC - point of law of general public importance + either the HC or SC must grant leave to appeal

Answer 234

- note that JR is not strictly a form of appeal - can make an app where: (a) mags = made an order that they had no power to make (‘ultra vires’) (b) mags = breached the rules of natural justice (either by contravening a party’s right to a fair hearing, or by appearing to be biased). - quashing original decision - compelling mags to act in certain

Answer 235

- COA - need either COA or trial judge leave to appeal - CONVICTION MUST BE UNSAFE > all other cases = COA must dismiss the appeal - means a conviction may be upheld even if there was an error or mistake at the Ds trial in the Crown, if the COA considers that, had the mistake not been made, the correct and only reasonable verdict would still have been one of guilty

Answer 236

- can ask the trial judge to certify the case is fit for appeal - but rare - usually ask for permission from the COA direct 1. within 28 days from conviction = serve at registrar COA: i) appeal notice ii) draft grounds of appeal (setting out why conviction is unsafe) 2. registrar preps case papers > single judge decides permission - note loss of time direction if without merit 3. hearing > 3 panel judge (full COA) - hear oral arguments - may also hear fresh evidence if that evidence: (i) appears to be credible; (ii) would have been admissible at the defendant’s trial; and (iii) there is a reasonable explanation for the failure to adduce this evidence at the defendant’s trial

Answer 237

- quash the conviction - acquit - order retrial - allow parts of the appeal + dismiss others (if multiple offences) - find D guilty of alternative offence - dismiss the appeal - if the court is satisfied the the D would have been acquitted at trial (for example, had new evidence presented at the appeal been available at the original trial), the Court will not order a retrial - in most other cases = retrial unless unfair or inappropriate

Answer 238

- basically the same procedure as for appealing a conviction - the appeal = usually confined to legal submissions on what the appropriate sentence (or sentencing range) is in the particular case

Answer 239

(a) sentence= WRONG IN LAW e.g. trial judge passed sentence they didn't have the power to impose (b) sentence = WRONG IN PRINCIPLE e.g. trial judge passed custodial sentence when it didn't warrant one (c) judge adopted = WRONG APPROACH e.g. increases the sentence where D pleaded guilty instead of reducing (d) in the case of CO-Ds, there is an UNJUSTIFIED DISPARITY e.g. where equally culpable (e) the sentence passed is MANIFESTLY EXCESSIVE - only interfere if gone beyond the upper limit of the sentencing range

Answer 240

- confirm original sentence - quash - vary - cannot increase the original sentence - may order loss of time direction

Answer 241

- can appeal in respect of rulings which: (a) either effectively terminate the trial or (b) significantly weaken the prosecution case and... - can appeal if the AG thinks the sentence is unduly lenient > COA then has the power to increase - only where indictable offence or is a specified either- way offence + COA has given permission - sentencing powers of the crown

Answer 242

- double jeopardy principle - CJA 2003 lists those offences for which a retrial is possible following the acquittal of a D, including: (a) murder and attempted murder; (b) manslaughter; (c) kidnapping; (d) a number of sexual offences under the Sexual Offences Acts of 1956 and 2003, including rape, attempted rape and assault by penetration; (e) various offences in relation to Class A drugs, such as unlawful importation and production; and (f) arson endangering life or property.

Answer 243

1. EVIDENTIAL TEST - ‘new and compelling’ evidence of the Ds guilt - new = not adduced when D was acquitted - compelling = evidence must be reliable, substantial and highly probative of the case against the D 2. INTERESTS OF JUSTICE TEST - the COA should have particular (but not exclusive) regard to the following factors: (a) whether existing circumstances make a fair trial unlikely; (b) the length of time since the offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition; and (d) whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.

Answer 244

It is for the prosecutor to inform the court of any relevant previous convictions which the client has and so long as the court is not intending to pass a sentence which is unlawful, the solicitor need not intervene. If the court is going to pass an unlawful sentence as a result of what they do not know, then the solicitor has a duty to inform the court of her previous conviction.

Answer 245

principle aim = PREVENT offending must have regard to the WELFARE of juveniles

Answer 246

- coordinate the provision of youth justice services in their particular area - a member of the YOT will sit in each sitting of the youth court - YOT will assist the youth court with: (a) investigating and confirming the personal circumstances and previous convictions of juveniles; (b) providing support for juveniles who are granted bail; (c) preparing pre- sentence reports; and (d) administering any non- custodial sentence imposed by the youth court.

Answer 247

- under 16 = must be accompanied by their parents or guardian during EACH STAGE of the proceedings, UNLESS the court is satisfied that it would be UNREASONABLE to require such attendance - aged 16/17 = the court has a DISCRETION as to whether to make an ORDER requiring the attendance of the juvenile’s parents or guardian - those parents that do attend will play an ACTIVE role - the court will want to hear from them (e.g. regarding sentencing) and may direct questions to them

Answer 248

- members of the press can attend the youth court - but cannot report: i) name ii) address iii) school iv) any other details which are likely to lead to the identification of the juvenile or any other child or young person (such as a witness) involved in the case - end when reach 18 - can have a lifelong reporting restriction in respect of a victim or witness who is under the age of 18 during the proceedings - can be lifted if in PUBLIC'S INTEREST - only where it will provide A REAL BENEFIT TO THE COMMUNITY - the power should not be used as an extra punishment

Answer 249

- same role as if they were representing an adult in the mags - same tests are applied for the granting of legal aid but the LAA must take into account the age of the juvenile in making its decision - all under 18 = eligible regardless of means

Answer 250

under 10 youth court = 10-17

Answer 251

a district judge or a bench of youth justices

Answer 252

- at the police station = a suspect who IS, or APPEARS to be, under 18 years of age - at youth court = under 18 - note in the youth court = collectively known as youths or juveniles but also sub-divided into: - ‘Children’ are juveniles aged between 10 and 13 inclusive - ‘Young people’ are juveniles aged between 14 and 17 inclusive

Answer 253

- has been SENTENCED ON 3 separate occasions FOR 1 OR MORE RECORDABLE OFFENCES - (a recordable offence is any offence for which a juvenile may receive a custodial sentence) - PYO will have their cases expedited

Answer 254

- promise instead of swear - sitting level rather than raised dock or bench - juveniles = first names - straight forward language - emphasis on as much communication with mags, juvenile and parent/guardian - finding of guilt rather than conviction

Answer 255

- usually standard directions as there would be in the mags - unless PYO > revised directions so expedited trial can take place

Answer 256

- if a juvenile is charged with an offence when aged 17, but turns 18 prior to their first appearance in the youth court

Answer 257

- may either remit to the adult mags or retain - if they retain they have the full sentencing powers of the adult mags

Answer 258

1. homicide = MUST go to adult Crown 2. firearms + 16 at the time of the alleged offence = MUST be sent to adult Crown 3. grave crimes - offences for which an offender aged 21 years or over may receive a custodial sentence of 14 years or more (such as robbery, rape, assault by penetration, s 18 GBH), together with a number of specific sexual offences, including sexual assault - the youth court MAY accept or send to the Crown - youth court should only retain the case if they feel their SENTENCING POWERS ARE SUFFICIENT + a sentence of longterm detention would be more appropriate 4. specified offences - violent or sexual offence = MAY go to Crown - only where D = ‘dangerous offender’ the offence could receive one of: i) automatic life ii) discretionary life iii) extended sentence 5. jointly charged with an adult i) adult's case dealt with in the Crown - juvenile MAY also be sent to the Crown - only where in the interests of justice ii) adult's case dealt with in the mags court - adult and juvenile MUST be tried together - if juvenile convicted > usually sent back to youth court for sentencing

Answer 259

- cases where the youth court MAY send to the Crown > juvenile will be asked into indicate their plea: i) grave ii) specified iii) jointly with adult who is sent to crown - if juvenile indicates guilty plea > either sentence them or send them to the Crown for sentencing if they think their powers would be inadequate - if indicates non-guilty > send to Crown if they think their sentencing powers are inadequate - but the juvenile does not have a right of election

Answer 260

(a) on bail (with or without conditions) (b) into local authority accommodation or (c) in the case of 17- year- olds, into custody.

Answer 261

1. remanded to local authority accommodation - 10-11 year olds cannot 2. youth detention accommodation - STARTING POINT > consider best interests + welfare - ages of 12–17 = PRESUMPTION will be remanded into local authority accommodation - FOUR CONDITIONS to be remanded in youth detention: (i) aged 12 to 17 years (ii) must usually have legal representation (iii) VIOLENT OR SEXUAL offence > adult receive 14yrs or more + ‘VERY LIKELY the child will receive a CUSTODIAL sentence’ for the present offence OR juvenile will need to have a ‘recent and significant history’ of: a) ABSCONDING whilst remanded b) COMITTING imprisonable offences whilst on bail/remand (iv) The court must believe = NECESSARY either to: - PROTECT the public from death or serious personal injury - to PREVENT the commission by the juvenile of further imprisonable offences + that the ‘risk posed by the child CANNOT BE MANAGED SATISFACTORILY in the community’.

Answer 262

- must balance the: i) seriousness of the offence ii) welfare of the juvenile - must have regard at all times to the principal aim = prevent reoffending

Answer 263

- CPS give facts of the case - plea in mitigation - usually hear from parents/guardian

Answer 264

- must usually always obtain the report before sentencing - the court is likely to INDICATE the type of sentence it has in mind when it orders a report, and the report will address the juvenile’s SUITABILITY for that type of sentence - the court places GREAT EMPHASIS on the report - MAY ADJOURN proceeding to allow the YOT to prepare the report or - may ask the member of the YOT who is present in court to prepare a 'STAND DOWN' REPORT so that sentencing can take place without the need for the case to be adjourned

Answer 265

- focus on principal aim + welfare - individualistic approach rather than offence focused - focus on rehab - consider the effect the sentence is likely to have - consider underlying factors that contributed to the offending behaviour - custodial sentence = last resort > only appropriate where offence is so serious that no other sanction is appropriate - avoid criminalising unnecessarily - the effect of their lack of full development/ maturity on their decision making and risk taking behaviour - a child's emotional and developmental age is of at least equal importance to their chronological age (if not greater)

Answer 266

In determining the sentence, the key elements to consider are: ∘ the principal AIM of the youth justice system ∘ the WELFARE of the child or young person; ∘ the AGE of the child or young person (chronological, developmental and emotional) ∘ the SERIOUSNESS of the offence; ∘ the likelihood of FURTHER offences being committed; and ∘ the EXTENT of harm likely to result from those further offences.

Answer 267

- the SERIOUSNESS of the offence - in order to determine seriousness, the court should assess the CULPABILITY of the child or young person and the harm that was caused, intended to be caused or could foreseeably have been caused - in assessing culpability, consider: i) planning ii) the role of the child (if offence committed by group) iii) level of force iv) awareness of their actions - should also consider the HARM: i) physical and psychological harm caused to the victim ii) the degree of any loss caused to the victim iii) the extent of any damage caused to property (should include intention/foreseeability of harm) - AGGRAVATING/MITIGATING factors (but note, if any of these factors are INCLUDED IN THE DEFINITION of the committed offence they should not be taken into account when considering the relative seriousness of the offence before the court)

Answer 268

1. referral order 2. youth rehabilitation order 3. detention and training order

Answer 269

- PLEADS GUILTY to an offence (which carries a possible custodial sentence) - NEVER PREVIOUSLY been convicted or bound over by a court - UNLESS the court is proposing either to impose a custodial sentence or to make an absolute discharge - where the juvenile enters into a MIXED plea (ie guilty to one or more offences but not guilty to others), the court has the POWER to make a referral order BUT IT IS NOT OBLIGED TO DO SO - if r.o made > youth offender panel (a member of YOT + 2 community volunteers) - the panel will speak to the juvenile and their family with a view to: (a) stopping any further offending; (b) helping the juvenile right the wrong they did to their victim; and (c) helping the juvenile with any problems they may have. - the panel will agree with the juvenile a ‘youth offender contract’ - lasts between 3 -12 months - the terms are agreed between the juvenile and the panel members

Answer 270

- equivalent to community order for adults - allows the court to include one or more requirements to achieve: i) punishment for the offence ii) protection of the public iii) reduction in re- offending and reparation (for a period of up to three years)

Answer 271

- custodial sentence - should not be imposed unless the offence (or the combination of) is SO SERIOUS NEITHER A FINE ALONE NOR A COMMUNITY SENTENCE CAN BE JUSTIFIED for the offence - court would need to STATE the reasons WHY such a YRO was INAPPROPRIATE - cannot be made for 10-11 - 12-14 > must be PYO - 15 and above = no restrictions - NO power to SUSPEND a detention and training order - the order can run for at least 4 months - must not exceed a total of 2 yrs - length of the order must also be for the SHORTEST PERIOD OF TIME the court considers commensurate with the seriousness of the offence, or the offence and one or more offences associated with it - may only be imposed where YOT REPORT has addressed this as a sentencing option - held in detention in a young offender institution for ONE HALF of the period of the order (released under supervision for the other half) - breach of supervision = can be further punished

Answer 272

- youth court is part of the mags - same rights of appeal as D in adult mags

Answer 273

- anyone with caring responsibilities for the youth - e.g. parent or guardian - e.g. someone who has part time caring responsibilities for the youth like social worker or care worker - friends not usually allowed in unless there is a very good reason

Answer 274

Option B is correct. At the first hearing after the hearing at which the magistrates refused to grant bail, the defendant’s solicitor is allowed to make a full application for bail using any argument as to fact or law, even if they used the same arguments in the first unsuccessful bail application.

Answer 275

B is the correct answer because distress about testifying will not be sufficient to engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an adverse inference where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’.

Answer 276

- needed to have disclosed it in intial interviews to avoid adverse inferences > s.34 - then raise again at trial when D is in the witness box - no legal burden (this remains with the P)

Answer 277

7 gateways: a) parties agree b) D adduces it himself c) important explanatory evidence - impossible or difficult to understand the case - value of the evidence for understanding the case as a whole is substantial d) important matter in issue between P and D - propensity to commit offences of the kind - propensity to be untruthful - s 101 (3) > basically s78 PACE but mandatory whereas PACE is discretionary e) substantial probative value in relation to an important matter in issue between D and co-D - propensity to commit offences of the kind - propensity to be untruthful (dishonesty will suffice here) f) correct a false impression g) attack on another person's character - all but (d) + (g) are automatically admissible - could still try and exclude using s.78 PACE

Answer 278

- whether there is sufficient evidence for a realistic prospect of conviction - there is a public interest in the case

Answer 279

mags = sentence crown = conviction

Answer 280

2 x P: punishment of offenders protection of public 3 x R: reparations reduction in crime rehabiliation

Answer 281

- guidelines on gateway (d) > propensity to commit offences of the kind charged - if only one previous conviction of the same description or category = unlikely to show propensity - UNLESS there are distinguishing circumstances or a tendency towards an unusual behaviour

Answer 282

IF ID EVIDENCE IS GOOD: - identification evidence should be treated with caution - it is easy for an honest witness to be mistaken IF EVIDENCE IS POOR BUT SUPPORTED: - point out the weakness in the identification evidence - tell the jury to look for supporting evidence before convicting

Answer 283

1.limited sentencing powers > now 12 months for single either-way offence - note the mags retain the power to commit the D to the Crown for sentencing (if it appears more serious than it did at the allocation hearing) 2. speed - trials take place quicker - important for someone with commitments in another part of the country - important for someone who has been denied bail 3. stress - procedure in the mags is less formal - not really relevant for someone who has been to trial before 4. prosecution costs - if convicted, D is likely to have to make a contribution towards the CPS' costs for bringing the case - costs are likely to be higher in the Crown because more prep is required for trials in the Crown 5. defence costs - if granted legal aid in the mags, a D is not required to contribute towards defence costs - in crown = subject to financial eligibility tests - eligibility = household disposable income of 37.5 k but then a means test will assess income and capital > may need to contribute 6. no obligation to serve defence statement - have to give defence statement in the Crown which provides the CPS with much more information about the defence case

Answer 284

1. greater chance of acquittal - juries more sympathetic to defendants - mags may be pre-disposed to favour a witness' evidence if they are a police officer who has given evidence many times before 2. better procedure for challenging the admissibility of evidence - voire dire in Crown - magistrate decides on matters of law and fact - however, most mags courts do now try to determine issues on admissibility of evidence at pre-trial hearings + with a different bench of lay mags 3. more time to prepare for trial - would be helpful where the case is complex or where there are lots of witnesses

Answer 285

i ) an officer of INSPECTOR OR ABOVE enquires about the reasons for the change of mind + informs the sol of this decision/reasons ii) reasons + attempts to contact sol are recorded in the custody record iii) the suspect CONFIRM IN WRITING they want to proceed without a sol iv) inspector or above is satisfied that it is proper for the interview to proceed in these circumstances and gives authority in writing to proceed v) when the interview starts, the interviewer reminds the suspect of their right to legal advice + : - confirmation the detainee has changed their mind - authority for the interview to proceed has been given - that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay, and a break will be taken to allow them to speak to the solicitor if they wish

Answer 286

- all Ds = presumption in favour of bail (minus execptions) - burden falls on the prosecution to prove it should not be granted

Answer 287

No, because there is no direct visual identification from the witness identifying the defendant as the perpetrator of the burglary.

Answer 288

- sentences of 5 years or less - committed after 10th Sep. 2024 - released after serving 40% - post-custody supervision = 12 months

Answer 289

i) juvenile’s antecedents ii) record for previous grants of bail iii) home situation iv) their attendance record at school, college or work

Answer 290

- under 18 + crown = automatic - if under 18 and in receipt of welfare benefits = automatic - see attached for when eligible and when subject to full means test MAGS: - annual disposable income of £3,398 or less CROWN: - disposable income of more than £3,398 - less than £37,500 - means test may determine that the client can afford to make some contribution

Answer 291

a) Code C b) Code D

Answer 292

- entitled to remain silent at trial - but if P raise issues which require an explanation from D + D does not give evidence > adverse inference - the court is inferring that D either has no explanation or none that would stand up to cross examination - CoA guidance: i) the court has to be satisfied that there is a case to answer on P's evidence ii) a s.35 inference cannot on its own prove guilt iii) no adverse inference could be drawn unless the ONLY SENSIBLE explanation for D 's silence = no explanation or none that would stand up to cross examination

Answer 293

- discretion for court not to draw adverse inferences - physical or mental condition of the accused makes it undesirable for him to give evidence - very narrow - examples: giving evidence would cause an epileptic seizure or induce a florid state for a schizophrenic D - ADHD

Answer 294

- evidence to the effect that the other person has: a) committed an offence (whether that be the offence D is charged with or something else) b) behaved in a reprehensible way - wide interpretation to this gateway - 'slag' > R v Ball - stating officers had conspired to set the D up > R v Williams - denying you have committed the crime = not an attack

Answer 295

Plea and Trial Preparation Hearing

Answer 296

- remember only obliged to in Crown (enforced by adverse inf.) 1. nature of the defence - any specific defences e.g self defence 2. facts in dispute - why they are disputing them 3. facts D relies on for purposes of their defence 4. points of law + their legal authority - includes admissibility of evidence 5. alibi defence: - name, address + dob of person - as many details as possible

Answer 297

something said or done which caused the D to confess for other reasons than they actually committed the offence - denied refreshments - denied appropriate breaks - offering inducements to confess - misrepresenting the strength of Ps case - questioning in an inappropriate way - threatening the subject - denying the suspect's right to legal advice arguing that the confession was only made because: - the D was unfit to be interviewed, they didn't know what they were saying - was desperate to leave the police station

Answer 298

notice required where you: a) seek to rely on hearsay evidence b) wish to oppose an application to introduce hearsay evidence - given to other parties + court - doesn't apply to s.118 exception

Answer 299

evidence of, or a disposition towards misconduct

Answer 300

- before the first appearance at the mags -it enables D's sol to advise client on plea

Answer 301

- opening speech: i) legal elements of the offence ii) evidence the P intends to call iii) explains the burden + standard of proof - if issues of evidence not sorted by trial, P will not reference them in opening speech - prosecutor will also read out hearsay - voire dire may take place during P case if there are evidential issues still oustanding - if more than one D, they will present their cases in the order on which they appear in the indictment - judges' summing up is in two parts: 1. directions on the law - burden + standard of proof - legal requirements of the offence - any other issues of law / evidence e.g. turnbull or adverse inferences 2. summing up of evidence - issues of fact the jury has to decide - arguments raised by P + D

Criminal Practice Flashcards

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