Criminal Practice Flashcards

Question

What are the THREE requirements for **delaying** the **right to have someone informed** of the detainee's arrest? What is the upper limit?

Answer 1

ALL of the below: 1. Arrested for **indictable** offence. 2. Delay authorised by officer of ***at least* inspector rank**. 3. The authorising officer has **reasonable grounds** for suspecting that exercising that right will lead to: (a) Interference with or harm to evidence. (b) Interference with or physical harm to people. (c) Alerting people connected with offence who have not been arrested. (d) Hindering recovery of property resulting from offence. Upper limit = **36 hrs**

Answer 2

1. Chief superintendent. 2. Superintendent. 3. Chief inspector. 4. Inspector. 5. Police sergeant. 6. Police constable.

Answer 3

1. It would cause **unreasonable delay** to the investigation. **or** 2. A specifically requested legal advisor is **unavailable** (and the detainee does not wish to use the duty solicitor).

Answer 4

The Custody Officer must record the basis for the suspect’s arrest and make a note of any account of the arrest given by the arresting officer. The Custody Officer should **record any voluntary comment by the suspect about this account but should not question the suspect**.

Answer 5

1. Release on **bail** (if necessary and proportionate). 2. Release under **investigation**. 3. **Detain** without charge (iff reasonable grounds for believing detention is necessary to secure/preserve evidence OR obtain such evidence by questionning suspect).

Answer 6

From when they arrive at the police station (which should be noted in custody record).

Answer 7

Within **6 hours** of arrival at the police station.

Answer 8

Within **9 hours** of the last review.

Answer 9

The **Review Officer** - different to Custody Officer and ***at least* Inspector** rank who is independent of the investigation.

Answer 10

False, it is only possible for an **indictable** offence.

Answer 11

By an officer responsible for the station who is ***at least* superintendent** rank.

Answer 12

The test a superintendent (or above) must apply to authorise extending the detention period (for indictable offences only) from 24 hours to 36 hours is: 1. There are reasonable grounds for believing detention is necessary for preserving or securing evidence or **obtaining evidence** by questioning. **and** 2. There are reasonable grounds for believing that the investigation is being conducted **diligently and expeditiously**.

Answer 13

1. **Release** the suspect (unconditionally or on bail). 2. Seek **warrant** for further detention from magistrates. | (s 43 PACE)

Answer 14

1. There are reasonable grounds for believing detention is necessary for preserving or securing evidence or **obtaining evidence** by questioning. **and** 2. There are reasonable grounds for believing that the investigation is being conducted **diligently and expeditiously**.

Answer 15

**96 hours**. *Exception:* Terrorism.

Answer 16

Formally accusing the suspect of a crime and commencing a prosecution.

Answer 17

**Custody Officer** - summary offences, retail theft offences, and either-way offences where a guilty plea and sentence in magistrates' is likely. **Crown prosecutor** - indictable offences and either-way offences in which Custody Officer is not allowed to decide.

Answer 18

1. **Evidential sufficiency** - realistic prospect of conviction. **and** 2. **Public interest** - in public interest to devote public resources to prosecuting the defendant.

Answer 19

Stolen or prohibited articles. Examples: 1. Offensive weapon. 2. Made, adapted or intended to be used for crime. 3. Unlawful bladed article. 4. Prohibited firework.

Answer 20

False, they can also carry out stop and search of **private land which is readily accessible to the public** e.g. a shop.

Answer 21

Part 1: Did the police officer ***actually* suspect** the thing? Part 2: Was the police officer's belief **reasonable**?

Answer 22

NOT: Race-based stereotyping. Generalised random targeting. INSTEAD: Police intelligence. Facts observed.

Answer 23

A legal permit given by a magistrate for an arrest to take place. Applies to **imprisonable or indictable offences** where the person's address is unknown.

Answer 24

1. There is a **basis of arrest** (i.e. an offence has been, is being, or is about to be committed or the officer has reasonable grounds for believing that to be the case). 2. The arrest is **necessary** (or reasonable grounds for believing it was). | PACE s 24; Code G

Answer 25

Warrants immediate action **and** Reasonable grounds for belief

Answer 26

1. Prevent them becoming a **danger** to themselves or others. 2. Remove items that might assist their **escape**. 3. **Evidence** relating to offence.

Answer 27

1. Suspect is on the premises. 2. Premises occupied or controlled by suspect arrested for indictable offence (or related offences).

Answer 28

Cannot seize items that may reasonably be subject to legal privilege.

Answer 29

Whether they are a vulnerable person (or child) requiring an appropriate adult.

Answer 30

This offence was summary only so there was no basis for preventing legal advice.

Answer 31

There is not yet sufficient evidence to charge the person with an offence, given the doubts about whether they were acting in self-defence. Therefore, the Full Code Test cannot yet be made out and the person should be interviewed first. As an indictable offence the CPS will make the charging decision though.

Answer 32

They had reasonable grounds to suspect that the arrestee has committed an offence and that they had reasonable grounds for believing the arrest to be necessary.

Answer 33

The officer should caution the suspect following the arrest and tell them about the grounds for the arrest, even if they speak for themselves. The suspect is compliant and there appears to be no reason why this cannot be done.

Answer 34

The questioning of a person regarding their involvement or suspected involvement in a criminal offence. | para 11.1A, Code C of PACE

Answer 35

False, only police interviews need to be under caution.

Answer 36

The police station.

Answer 37

If delaying the interview would lead to loss / interference / harm to: * **R** ecovery of property * **E** vidence * **P** roperty * **O** ther people **r** * **T** ipping off others

Answer 38

If the interviewing officer is at a different police station to where the suspect is detained.

Answer 39

* Medical professional's opinion. * Assessing whether they are under influence of alcohol or drugs.

Answer 40

Interviews at the police station should be conducted in a room which is properly heated, ventilated, and **lit**.

Answer 41

1. When there is **sufficient evidence** to charge. 2. When the officer in charge of the investigation is satisfied that **all relevant questions** have been put to the suspect (e.g. for suspect to give explanation and challenge that explanation).

Answer 42

1. That the interview is being conducted **under caution**. 2. That the suspect is entitled to **legal advice** (unless it has been delayed). 3. Information about the **offences** on which they are being interviewed to understand what they are suspected of doing.

Answer 43

1. If it would be **unfair** to adduce it (s78). 2. It is a **confession** which was obtained by **oppression** or circumstances likely to make it **unreliable** (s76).

Answer 44

1. Continued interview after **repeated denials**. 2. Significant **bullying** of the suspect.

Answer 45

Anything said or done. Example: Indicating that the police will take a certain action if they confess (unless in answer to a direct question).

Answer 46

False, if the facilities exist then they must be, but generally police stations are just equipped with audio recording.

Answer 47

It may be inadmissible in court. | s78 PACE

Answer 48

* Inspecting the custody record, enough to understand reasons for detention. * Seeking disclosure from investigating officer, enough to understand nature of offence.

Answer 49

False, they can consult the custody record and learn the broad nature of the offence. But they are not entitled to be informed of the evidence.

Answer 50

1. **Challenge** inappropriate / unclear questions, the manner of questionning or, or seek clarification. 2. **Advise** client not to answer particular questions. 3. Ask for interview to be **suspended** to allow them to provide further advice.

Answer 51

If they conduct makes it impossible for the interviewer to "**properly put questions** to the suspect". | para 6.9, Code C, PACE

Answer 52

In certain circumstances, the jury is entitled to draw **adverse inferences**. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 53

**Purpose:** To formally warn suspect of right to silence and right to draw adverse inferences from it. * Upon arrest * At the start of interview * When interview recommences

Answer 54

**Caution:** You do not have to say anything. But it **may** harm your defence if you do not mention when questioned something which you later rely on **in Court**. Anything you do say may be given in evidence. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 55

* Provide a **preprepared statement**, setting out their account in whole or in part. * **Answer questions** and provide a full account. * Not answer the questions either by saying nothing or more likely by replying “**no comment**” to the questions asked. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 56

Any inferences **"as appear proper"**. E.g. the account given at trial was a subsequent fabrication because they 'failed to mention facts later relied on' (s 34 CJPOA). | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 57

True, and a jury must be reminded of this. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 58

1. Failure to mention a **defence fact later relied on**. 2. When **interviewed**. 2. At interview they were **offered legal representation**. 3. It was **reasonable to expect them to mention it** in interview. s 34 CJPOA *does not* apply to 'no comment' interviews (there are other inferences possible for these). | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 59

1. Arrested. 2. Failure to mention when **interviewed or questionned**. 2. During interview or questioning they were given **'special caution'** i.e. informed of (i) offence being investigated, (ii) what being asked about, (iii) connection with offence, (iv) possibility of adverse inference, and (v) record being kept and may be used at trial. It *can* apply to 'no comment' interviews. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 60

1. Arrested. 2. Failure to mention when **interviewed or questionned**. 2. During interview or questioning they were given **'special caution'** i.e. informed of (i) offence being investigated, (ii) what being asked about, (iii) connection with offence, (iv) possibility of adverse inference, and (v) record being kept and may be used at trial. It *can* apply to 'no comment' interviews. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 61

True. | Criminal Justice and Public Order Act 1994 (CJPOA)

Answer 62

* **s34** - failure to mention facts on which they now seek to rely and would have been reasonable to expect them to mention. * **s35** - failure to give evidence at trial (because wouldn't stand up to scrutiny). * **s36** - failure to account for objects, substances, and marks. * **s37** - failure to account for presence at scene.

Answer 63

1. Juveniles (under 18) 2. People who do not speak or understand English 3. People suffering from mental health issues 4. People who are illiterate 5. People with vision impairment

Answer 64

1. Relative, guardian, or other person responsible for care / custody of person 2. Someone with experience dealing with such persons 3. Other responsible adult independent of police

Answer 65

True. Exception: Interview authorised by superintendent +

Answer 66

1. Support, advise, assist detainee. 2. Observe that police acting properly and fairly. 3. Facilitate communication between detainee and police. 4. Help detainee understand rights, and ensure they are protected.

Answer 67

Officer of Inspector rank or higher.

Answer 68

It may be ruled inadmissible.

Answer 69

If necessary e.g. because waiting for facilities to be available would cause inappropriate delay. | Code E, PACE

Answer 70

A failure to issue this direction substantially in these terms could be a ground for an appeal against any resulting conviction.

Answer 71

1. They can ask whether the person owns the car and to confirm their identity. 2. If they wish to question the person about any suspected involvement in an offence, they must take the person to a police station (voluntarily or under arrest) to be questioned under caution unless delay would lead to: a. interference or harm to evidence b. interference or harm to people c. serious loss or damage to property d. hinderance of recovery of, property, or e. alerting people suspected of an offence.

Answer 72

1. The person can be asked questions to determine their **identity** and whether there is a **need for further investigation**. There is no need to caution them for these. 2. The person can be asked to account for their **presence** near the alleged victim’s house and the **scratches** on their face, but the police must explain why they are doing so and that failure to answer may lead to adverse inferences. A **special warning** must be given. 3. The person should not be questioned further on their involvement in the offence on the street unless there is a **specific reason for not delaying** this (harm to people or property, loss of evidence, or alerting of others at large). If they are interviewed about their involvement, this should take place under **caution**.

Answer 73

1. Failure to explain presence at the scene and the hammer when ***arrested*** will be **admissible** if the person was asked about those facts and issued a **special caution**, and if the judge decides that they are facts that **required explanation**. 2. Failure to mention these during ***interview*** is **not admissible** because the person was never offered or received legal representation.

Answer 74

False, it can increasingly be granted by police.

Answer 75

Police **must** release a suspect on bail with/without charge (rather than under investigation) if they are satisfied it is necessary **and proportionate** to do so. There is **no** presumption against bail.

Answer 76

* **Safeguarding** (victims, witnesses, suspect and public). * Risk of **(re-)offending**. * Ensuring suspect **surrenders to custody**.

Answer 77

Initial period - **3 months**. It can be extended twice up to **9 months in total** upon application of police if they've not completed their investigation.

Answer 78

There is no fixed date to return to the police station. There are no conditions.

Answer 79

The defence representative can make representations to the Custody Officer. The Custody Officer will follow the same principles as would be applied by a court. Namely, considering if there are **reasonable grounds** for believing, * They will **fail to attend** court on the appointed date. * Detention is necessary to prevent **interference with administration of justice / investigation**. * Detention is necessary to prevent **particular harm**. * Person charged with **murder**.

Answer 80

They will be in breach of the **"primary condition"** of bail, which constitutes the offence of **absconding**.

Answer 81

True. | s 4 Bail Act 1976

Answer 82

1. Indictable and imprisonable 2. Summary-only and imprisonable 3. Non-imprisonable

Answer 83

* Where the defendant is accused of a **very serious offence** e.g. murder, manslaughter, rape or serious sexual offence and also has a *previous conviction* for one of them. * Where a defendant is charged with **murder**, bail can only be granted by a **Crown Court Judge** and then only where the Judge considered that there is **no significant risk** of the defendant committing an offence likely to cause physical or mental injury while on bail.

Answer 84

A "serious offence" under s 25 CJPOA: * Murder (or attempted murder) * Manslaughter (for which they received a custodial sentence) * Rape or other serious sexual offences (or attempts to commit these) | s 25 CJPOA; Sexual Offences Act 2003

Answer 85

COURT: False, while the presumption in favour of bail may be more easily rebutted, provided a **Crown Court Judge** thinks there is **no significant risk** that the defendant would commit a **physically violent** or **mentally injurious** act while on bail, bail can be granted. POLICE: True, only a court can grant bail in the case of murder.

Answer 86

**SUBSTANTIAL GROUNDS** to believe... 1. Fail to surrender to custody 2. Commit an offence 3. Interfere with witnesses or course of justice *Exception:* Defendant is 18+, has not been convicted in those proceedings, and no real prospect of custodial sentence anyway. In this case, bail cannot be withheld on these grounds. **OFFENCE COMMITTED WHILE ON BAIL** **OTHER EXCEPTIONS** * Has already breached bail. * Own protection. * Serving prisoner. * Insufficient information. * Impracticable to complete enquiries without.

Answer 87

True, but only for imprisonable offences.

Answer 88

**'Paragraph 9 Factors'** 1. Nature and seriousness of offence (incl. likely sentence) 2. Defendant's character, communities ties, previous convictions and associations 3. Defendant's bail record 4. Strength of prosecution evidence 5. Whether bail conditions can allay concerns

Answer 89

* Previous failure to surrender or breach conditions, **and substantial grounds** to believe they'd fail to surrender again, commit offence, interfere with witnesses / justice. * Kept in custody for own protection. * Already serving custodial sentence. * Previous failure to surrender or breach conditions **and *substantial grounds*** for believing they will commit offence against **associated person** (e.g. witness).

Answer 90

To surrender at the appointed date and time at the specified location.

Answer 91

Only if it is **"necessary"** to do so to ensure: * They surrender to custody. * They don't commit offences on bail. * They do not interfere with witnesses or obstruct justice. * They are available for enquiries and completing a report for sentencing purposes. * They attend an interview with legal representatives.

Answer 92

* **Surety** - a "suitable person" guarantees that the defendant will attend court, otherwise a sum of money will be forfeited. * **Security** - the defendant deposits money with court, which they forfeit if they don't attend. * **Residence** - where the defendant must live and sleep (incl. bail hostel). * **Reporting** - reporting to a specified police station as specified times to ensure they remain in area. * **Exclusion** - exclusion from certain places. * **Non-contact** - banned from contacting certain people. * **Curfew** - remaining indoors at certain times. * **Electronic monitoring** - a tag. * **Surrender of passport** - to avoid defendant fleeing country.

Answer 93

Sureties promise to pay a sum of money (“enter a recognisance”) which they then must forfeit **if** the defendant fails to surrender. A surety must have some influence over the defendant so that they can influence whether the defendant will abscond.

Answer 94

True, it is usually tacked on the end of a pre-trial hearing or adjourned to a later point in day / week.

Answer 95

The prosecution will outline objections and produce evidence to support these. Then, the defence will make a bail application and suggest conditions to meet any concerns. They might call a witness who has offered to stand as surety.

Answer 96

Give reasons in **open court** for their decision to withhold or impose conditions. If bail is refused, the court will issue a **certificate of full argument**.

Answer 97

Where a person has been remanded in custody, they can only make ONE further application based on the **same factual / legal arguments**. In practice, this means they can only make two full applications unless there is a material change in circumstances.

Answer 98

Examples: * Change in evidence against defendant (e.g. important statements withdrawn / amended). * Change in defendant's circumstances (e.g. availability of address).

Answer 99

To appeal to the Crown Court for bail (usually in chambers rather than open court).

Answer 100

A **written application** to the Crown Court, which is also served on the prosecution. The appeal should be heard within **48 hours** of the initial refusal, and will be a complete **rehearing** of the bail issues. The Crown Court may hear the matter in public or in chambers

Answer 101

False, while usually they are brought by the defence against refusal of bail, the prosecution can appeal a *grant* of bail if the offence is either: 1. Imprisonable 2. Taking a vehicle without consent

Answer 102

1. Failure to surrender **without reasonable excuse** 2. Having a reasonable excuse but then failing to surrender **as soon as reasonably practicable thereafter** The defendant has the burden of proof for showing "reasonable excuse". | S 6(1) & 6(2) Bail Act

Answer 103

1. Issue a **"bench warrant"** directing the arrest of the defendant to bring them to court. 2. **Adjourn and extend** bail. 3. If lawful to do so in context of case, **proceed** in their absence. 4. Wait to see if they turn up.

Answer 104

False, but a defendant may be arrested (without warrant) if an officer has **reasonable grounds** for believing the defendant is **unlikely** to surrender or has breached, or is **likely** to breach bail conditions.

Answer 105

The defendant should be arrested and must be produced before a magistrate **within 24 hours** (excluding Sundays) of the arrest (or sooner if practicable). If the court then determines the defendant is likely to fail to surrender or breach bail conditions (the presumption in favour of bail is lost), the defendant can be: * Remanded into custody * Released subject to different conditions

Answer 106

1. **Street bail** - an officer puts an arrested person under an obligation to attend a police station *within 28 days*. This can only be done if necessary and proportionate and only if authorised by an inspector. Some limited conditions can be imposed to ensure attendance, prevent harm, protect the investigation or for the person's own protection. 2. **Bail w/o charge** - bailed to attend the station at a later date, initially within 28 days, but this can be extended. 3. **Bail following charge** - the obligation is to attend a Magistrates' Court when it next sits. Once a person appears for the first time at court, bail will be a matter for the court.

Answer 107

Because once a defendant has breached bail conditions in those proceedings, they often lose the presumption of bail.

Answer 108

1. The person can still apply again, but magistrates do not have to hear arguments unless there is a change in circumstances. 2. The person can appeal the refusal of bail to the Crown Court (in which case there will be a full rehearing).

Answer 109

**Absconding:** A: Only if A has *already* failed to surrender. B: *Substantial grounds* for believing B would fail to surrender is sufficient. **Committing offences:** A: Only if A has *already* failed to surrender. B: *Substantial grounds* for believing B would commit offences is sufficient. **Interfering with witnesses:** A: Only if A has *already* failed to surrender or breached conditions. B: *Substantial grounds* for believing would interfere with witnesses is sufficient.

Answer 110

Although the defendant’s situation is factually difficult, there is still a presumption in favour of bail and it might be worth the solicitor exploring what conditions might be available (bail hostels, etc) and whether these would address the prosecution’s concerns.

Answer 111

Not unless the defendant was **on bail when** the previous offences took place or has failed to surrender to custody or breached bail conditions. Both offences are summary only imprisonable offences so **there must be a previous breach** either of bail requirements or an offence on bail before substantial grounds will justify the refusal of bail.

Answer 112

It cannot because the defendant has not been convicted and none of the other exceptions (which don't require them to have been convicted yet) to bail apply i.e.: 1. Own protection 2. Serving prisoners 3. Previous failure to surrender or breach conditions **and *substantial grounds*** for believing they will commit offence against **associated person** (e.g. witness).

Answer 113

* Name * Date of birth

Answer 114

False, in magistrates' trials in Wales, **no notice is required**. For this reason, r 3.18 of the *Criminal Procedure Rules 2020* says that if practicable, at least one member of the magistrates' court must be Welsh-speaking.

Answer 115

Either: * At or before the plea and trial preparation hearing * In accordance with a court direction

Answer 116

**Summary only and either-way:** As soon as possible after charge and **by 9am** on the day of the first hearing. **Indictable only:** Pre-hearing disclosure rules do not apply - the full disclosure process takes place in the Crown Court. In practice, the prosecution normally provide an inital disclosure, but they are *not* obliged to do so.

Answer 117

Enough information to enable an **"effective" hearing** i.e. information relevant to: * Plea. * Allocation. * Key issues. * Sentencing. This usually includes a case summary, witness statement, a record of police interview, and any previous convictions.

Answer 118

Guilty plea anticipated - **within 14 days of charge**, and is intended to resolve the case (including sentence). Not-guilty plea anticipated - **within 28 days of charge** to allow time to prepare effectively. An appraisal of the anticipated plea is based on the prosecution case from pre-charge investigations.

Answer 119

Ideally proceed immediately to trial. If not possible, a trial date should be set and directions issued to prepare for trial.

Answer 120

A **"plea before venue"** (an indicative plea), followed by **"allocation"** to either magistrates or Crown Court. If the case is allocated to magistrates, a trial date and related directions will be given.

Answer 121

An indictable-only offence (and any related offences) should be sent to the Crown Court **"forthwith"** (without even taking a plea). If the defendant is on bail, the defence will ask for it to be extended to the Crown Court.

Answer 122

* Obtain disclosure from prosecution * Take client’s instructions on prosecution's initial disclosure * Advise client * Apply for a representation order * Represent client at the hearing * Make application for bail

Answer 123

Provision of financial assistance or funding defence representation in the criminal courts. A legal representative should apply for this early on using an application form and financial statement.

Answer 124

1. **Merits test** - also known as the interest of justice test which looks as whether the case is serious enough to warrant full legal representation. As a general rule, non-imprisonable offence don't pass this test whereas an indictable-only offence would. 2. **Means test** - based on age (if under 18, automatically eligible) and income. Initial means test (gross annual income for the last 12 months). If not obviously eligible under initial means test, then full means test (gross income – outgoings).

Answer 125

* It is likely the defendant will lose their liberty. * It is likely the defendant will lose their livelihood. * It is likely the defendant will suffer serious damage to their reputation. * It is in the interests of another person that the defendant is represented.

Answer 126

* The case involves a substantial question of law. * The case is likely to require tracing and interviewing of witnesses. * The case involves expert cross-examination of witnesses (i.e. unusually difficult like identification-only evidence).

Answer 127

If they've not been convicted before, particularly in relation to dishonesty or sexual offences.

Answer 128

If it would be distressing or awkward for a witness to be questioned by an unrepresented defendant, such as a sexual assault case.

Answer 129

1. Under 18. 2. On certain welfare benefits. 3. Income below a certain threshold (based on documentary evidence).

Answer 130

False, they will automatically pass the **merits test** (because serious matter if in CC) but they will still need to pass the **means test**.

Answer 131

The **court clerk**, and if not granted, the defendant can appeal to the magistrates.

Answer 132

**STAGE 1: Plea-before-venue:** The clerk reads out the charge and explains that if the defendant indicates a guilty plea now, they will treat it as a formal guilty plea and proceed to sentence. The defendant then indicates their plea. If they indicate not-guilty or give no indication, the court proceeds to an allocation hearing. **STAGE 2: Allocation:** The magistrates and defendant determine whether the case will be heard in the Crown Court or magistrates'.

Answer 133

1. Sentence immediately. 2. Adjourn for sentencing reports. 3. Commit to Crown Court if magistrates' sentencing powers are insufficient.

Answer 134

They must be **legally represented** AND *EITHER*: 1. Defendant is **absent**. 2. Defendant's **disorderly conduct** makes it impracticable to proceed.

Answer 135

The magistrates have power to commit a sentence to the Crown Court for a higher sentence whenever they like.

Answer 136

* **Faster** to obtain a trial date. * **Cheaper** to run trial in magistrates' means any costs order against defendant and legal representation (if self-funding) may be lower. * **Likely sentence** limited to 6 months for a single offence or 12 months for 2+ either-way offences (but can transfer to Crown Court). * **Less onerous disclosure** on the defence, as they don't have to serve a defence statement. * **Appeal** - there a more options to appeal, including a complete rehearing at the Crown Court without needing permission of magistrates.

Answer 137

* **Legal complexity** - legal interpretation issues are resolved by an experienced professional judge. * **Preparation** - more time to prepare, gather evidence in support of defendant's case etc. * **Likelihood of acquittal** is higher. * **Disputed evidence** - arguments to exclude evidence are decided by judge in absence of jury.

Answer 138

If magistrates **accept** jurisdiction then the defendant is given the opportunity to elect trial in the Crown Court. If they elect the Crown Court, then the case is sent to the Crown Court for trial. If the magistrates **decline** jurisdiction (e.g. complex case or sentencing powers clearly insufficient), the case is sent to the Crown Court (and the defendant has no choice). | (either-way offences only)

Answer 139

1. Sufficiency of sentencing powers. 2. Representations of parties. 3. Allocation guidance and sentencing guidelines. 4. Previous convictions (aggravating factors).

Answer 140

False, the magistrates can always commit the defendant to the Crown Court for sentencing. Therefore, they only tend to decline jurisdiction if they feel that the likely sentence *far exceeds* their powers or the case is particularly complex.

Answer 141

False, while the defendant can ask, it is entirely at magistrates' **discretion** to give such an indication. And if they do, it will only be very general.

Answer 142

Yes, provided the defendant **immediately** indicates their guilty plea.

Answer 143

* Basic criminal damage (<£5,000) - **no right to elect** CC trial, treated as summary only. * Low-value shoplifting (<£200) - technically summary-only but defendant **can elect** CC trial.

Answer 144

First appearance at the Crown Court.

Answer 145

**"Related" either-way offence** = founded on same facts or part of a series of similar offences. **"Related" summary-only offence** = can be added to the indictment (and handled by CC end-to-end). * Common assault * Taking a vehicle without consent * Driving while disqualified * Criminal damage (<£5,000) The following *can't* be added to the indictment (and will be remitted to the magistrates' in the event of a not-guilty plea). * Arise out of same circumstances or connected to the indictable offence, and * Punishable either with *imprisonment*, or *driving disqualification*.

Answer 146

In the case of a summary-only offence that **cannot be added to the indictment**, on arrival at Crown Court, the judge will take a plea. * If they plead **guilty**, the judge will pass sentence limited to the sentencing powers of the magistrates' court (i.e. up to 6 months' imprisonment or 12 months for 2+ offences). * If they plead **not guilty**, the matter may be remitted back to the magistrates' court for trial.

Answer 147

The defendant will automatically pass the merits and will probably pass the means test subject to a contribution of income and, potentially, capital.

Answer 148

It can proceed to plea and allocation so long as the defendant is legally represented, **and** it is not practicable to proceed with the defendant present, **and** if it is appropriate to go ahead without them.

Answer 149

1. Testimony 2. Documentary evidence 3. Real evidence

Answer 150

The formal admission is taken to be an **agreed fact**. s 10 Criminal Justice Act 1967

Answer 151

1. Meaning of law 2. Procedures 3. Admissibility of evidence 4. Sentencing

Answer 152

* Prosecution's opening speech. * **Prosecution calls evidence.** * **Defence make submission of no case to answer, if appropriate.** * Defence calls evidence (if they wish). * Speeches. * Deliberation. * Verdict with reasons.

Answer 153

* Jury sworn * Prosecution's opening speech. * Prosecution calls evidence. * **Defence makes submission of no case to answer, if appropriate**. * Defence calls evidence (if they wish). * Speeches. * **Summing up to jury**. * Jury deliberates. * **Verdict**.

Answer 154

* Magistrates - Sir / Madam / Your Worships * District judge - Judge * Crown Court judge - Your Honour * High Court judge - My Lord / Lady or Your Lordship / Ladyship * A solicitor - My friend * A barrister - My learned friend

Answer 155

They should be present throughout, but it can proceed in their absence if: * They've been obstructive to the course of proceedings. * They're ill. * They've chosen not to.

Answer 156

12 jurors in total on the jury. A group of 16+ are brought into court and randomly selected.

Answer 157

False, technically the prosecution can object and ask an individual juror to **"stand by"**. However, this is only used in exceptional cases now. Both the prosecution and defence can challenge jurors **"for cause"** if they perceive a juror to be ineligible, disqualified, or there are reasonable grounds to suspect they may be biased.

Answer 158

1. That the prosecution has the burden of proof. 2. That the prosecution's case must be proven beyond reasonable doubt. 3. The key facts. 4. The points of law (e.g. elements). 5. What evidence will be called.

Answer 159

The order they are listed on the indictment.

Answer 160

To address **fresh issues** that arose in cross-examination.

Answer 161

Admitting their evidence as a written statement which is read out to the court under s 9 of the Criminal Justice Act 1967.

Answer 162

The test to be applied when the defence make a submission of "no case to answer" (in the absence of the jury). Two limbs: 1. There is **no evidence** that the crime alleged has been committed by the defendant (e.g. missing element). 2. The prosecution case **taken at its highest** is such that a jury **properly directed** could not properly convict.

Answer 163

1. The prosecution may answer. 2. If the submission succeeds, the judge will direct the jury to acquit the defendant on the relevant count.

Answer 164

The order in which their names appear on the indictment.

Answer 165

If the jury believes the only sensible explanation for their failure to testify is that they have **no credible defence** that would stand up to cross-examination, then they can hold that against them.

Answer 166

The judge may call them back provided they have deliberated for **at least 2 hrs** (or for longer depending on length and complexity of case). The judge will either ask them to continue to try to reach a unanimous verdict, or direct them to reach a majority verdict if not.

Answer 167

10:2 (if 12) 10:1 (if 11) 9:1 (if 10)

Answer 168

A judge will discharge them and the prosecution may decide to retry at a later date.

Answer 169

The magistrates may decide that **"no reasonable court could properly convict"** following either: * Close of prosecution's case * Magistrates' own motion * Application by defence

Answer 170

False, they need a majority verdict. Where they can't obtain this, they case will be adjourned for a rehearing.

Answer 171

Just enough for the defendant to understand why they were convicted (not a fully reasoned judgment).

Answer 172

The officer can attend the magistrates and give them legal advice and remind them of the factual issues but should not offer an opinion on whether the defendant may have been dishonest.

Answer 173

It is still possible to represent the client, to **test the prosecution case** and to require the prosecution to prove their case. But what the solicitor cannot do is advance any positive case that would contradict the client’s admission because they would be placing something before the court they know to be untrue.

Answer 174

It is admissible as real evidence but only if proven as such by other evidence.

Answer 175

By the solicitor formally admitting the fact at court (with the defendant’s consent).

Answer 176

Refuse the request but agree to inform their mother. A detainee has a right to have a single person informed of the arrest and detention who is known to them, or likely to take an interest in their welfare, at public expense as soon as reasonably practicable. The right is to have someone informed, **not to make a phone call themselves** directly.

Answer 177

The defendant will have the chance to object to summary trial and to request Crown Court trial. Because it is summary by default, there is **no allocation hearing**. However, a defendant can still elect trial in the Crown Court.

Answer 178

Only those that are **reasonably credible** and supported by *some* **evidence**.

Answer 179

The defendant must adduce sufficient evidence to leave it to the jury, and is usually elicited by them in cross-examination or another witness.

Answer 180

The defence needs to raise self-defence and, once they do, the prosecution must show, beyond reasonable doubt, that the defendant did *not* act in self-defence.

Answer 181

1. Insanity **<< evidential + legal burden** 2. Diminished responsibility 3. Good reason or lawful authority for possessing a bladed article 4. No likelihood that intoxicated person would drive the vehicle

Answer 182

Prosecution - beyond reasonable doubt. Defendant - balance of probabilities.

Answer 183

"Relevant" = it *could* make one of the facts in issue more or less likely. 1. **Direct evidence:** The evidence shows the fact in issue on its own without further evidence or explanation e.g. eyewitness of the offence being committed. 2. **Circumstantial evidence:** The evidence shows the fact in issue *if combined* with other evidence and an explanation of what the evidence shows e.g. the defendant visited the person just before the offence.

Answer 184

There have been notorious miscarriages of justice in cases involving visual identification evidence. Evidence suggests honest witnesses can easily be mistaken.

Answer 185

1. In-court testimony by eyewitness. 2. Evidence of successful identification procedures by police.

Answer 186

Either: 1. An identification procedure conducted by the police was **not necessary or appropriate** under Code D, PACE 1984. 2. (Summary trial only) The court is satisfied that holding an identification process was impracticable.

Answer 187

A case that is **wholly or substantially** based on poor identification evidence **must** be withdrawn from the jury unless other evidence can be adduced to support it.

Answer 188

* Circumstantial evidential such as phone location data or fingerprints. * Bad character / previous convictions. * Another eyewitness account provided both are "of a quality that a jury can safely be left to assess" (R v Weeder).

Answer 189

1. As part of a submission of **no case to answer**. 2. At the close of the case before **summing up** to jury.

Answer 190

Warnings to be given to a jury where the prosecution's case includes eyewitness identification (no matter its strength). They must be directed on: * **Caution:** Special need for caution before convicting on the basis of identification evidence due to the risks. * **Considerations:** To carefully consider (1) amount of time observed, (2) distance, (3) lighting, (4) obstructed view, (5) reason to remember defendant, (6) delay between observation and identification, (7) inconsistencies in description and defendant's appearance at time. * **Weaknesses:** Any particular weaknesses. * **Possibility of Mistakes:** Even recognition of an already known person can be mistaken. | R v Turnbull (1977)

Answer 191

False, if eyewitness identification is left to the jury, the judge **MUST** issue warnings consistent with the *Turnbull Guidelines*.

Answer 192

The defence would have a ground of **appeal**.

Answer 193

False, provided the key points are mentioned, the exact words aren't needed.

Answer 194

Yes, in the absence of a prior police identification procedure, the eyewitness cannot give evidence of identification, only *description* at trial.

Answer 195

**Unknown suspects** - procedures for finding out *who* might have committed an offence. The witness might be taken to a place or locality where they can point out people (each witness separately ideally). Or be shown *at least 12 photos* matching their description, which may or may not include the offender. **Known suspects** - procedures where there is some suspicion of a particular person (including following a successful 'unknown suspects' procedure).

Answer 196

A "first description" in which the witness gives a description of the suspect which is recorded.

Answer 197

An eyewitness has identified / claims to be able to identify / might be able to identify the offender **AND** A suspect disputes being the person the witness says they saw

Answer 198

* Not practicable OR * No useful purpose in proving / disproving the defendant's involvement

Answer 199

1. Video identification 2. Identification parade 3. Group identification 4. Confrontation

Answer 200

Where the confrontation procedure is used (the last resort option).

Answer 201

At least 8 + the suspect. And they should be as similar videos / people as possible.

Answer 202

* Suspect * Legal representative * Appropriate adult The police must consider reasonable objections.

Answer 203

**Group identification** - takes place where people are passing by or waiting around informally in groups the suspect can be seen in. **Confrontation** - takes place in the police station when witness shown the suspect (a last resort).

Answer 204

Any evidence of positive identification (and therefore in-court identification via testimony) will *potentially* be inadmissible under s78 (the discretionary power of court to exclude). Even if it *is* admitted, the jury should be informed of the failings and why the police identification procedures exist in first place.

Answer 205

* A bears the evidential burden as to self-defence, but once done, the prosecution have legal burden to prove it *wasn't* self-defence. * B does not bear any burden, including in relation to intoxication – the prosecution would still have the evidential and legal burden of proving intent.

Answer 206

1. **Cross-examine** the witness to challenge what they saw and undermine it. 2. Ask for the evidence to be **withdrawn** on the grounds that it is “poor” (short period, poor lighting, not a full view, no mention of the beard) and there is no independent evidence to support it. 3. If not withdrawn by the judge, remind the jury of weaknesses during **closing speech** and ensure that weaknesses are mentioned by the judge in the summing up.

Answer 207

Yes, as long as this is done fairly and in a balanced way.

Answer 208

They should only find diminished responsibility if they conclude it was likely that the defendant’s capacity was substantially impaired. The defence bear the burden of proving diminished responsibility so the defence must prove it as more likely than not. The jury in this case seem to have decided this not to be the case so should probably convict of murder rather than manslaughter.

Answer 209

No, because a prior out-of-court identification would have served no useful purpose in proving or disproving the defendant’s involvement. Identification is not the issue. The defendant admits presence and his defence is one of fabrication. The rules only apply if the identity of the defendant as the offender is actually and realistically disputed.

Answer 210

The judge will not withdraw the identification evidence even though it is likely to be found to be poor because there is independent supporting evidence (the fingerprints). It will need to be directed carefully about what to do with it, though.

Answer 211

It made it less likely that an identification procedure had to be held but requires additional warnings to the jury about the witness’ testimony. Sometimes, it may be necessary for identification procedures even where people know each other slightly, as in this case. However, there is an added need to warn the jury that even a recognition can be mistaken.

Answer 212

Yes. Where a person does not know who their attacker was, the police can first take a description and then take the victim around the locality to see if they can find the attacker. If this leads to an identification, a further identification is not needed (or appropriate).

Answer 213

Confession evidence.

Answer 214

**Non-leading** - questions that do not make assumptions about the answer or relevant facts that have not yet been admitted to by the witness. Answers to non-leading questions are reasonably open to the person being asked. **Leading** - used in cross-examination by the opposing party to put that party's case to the witness or otherwise undermine their credibility (e.g. they are lying, exaggerating, mistaken).

Answer 215

1. Formal introductory matters like the witness' name, addresses, and matters not in dispute. 2. Matters already established during testimony. 3. Hostile witness.

Answer 216

If they show **no desire to tell the truth** on behalf of that party, whether by: * Silence * Evasion * Inconsistencies * Lies The **judge** determines whether a witness is hostile, usually on application of the party calling them.

Answer 217

1. They can be cross-examined by that party. 2. They can have previous inconsistent statements put to them (which will become admissible evidence).

Answer 218

False, they may still be admissible but may merit less weight and the court will intervene (usually at request of other party) to restrain inappropriate use of leading questions.

Answer 219

They will not be able to invite the jury / Bench to disbelieve that fact in their closing speech.

Answer 220

An attack on a witness' credibility goes to whether they are lying, exaggerating, or a mistaken.

Answer 221

"Collateral" matters.

Answer 222

**Rule of finality** - to limit the scope of the trial, the witness' response in cross-examination to "collateral matters" is final. Exceptions: 1. Proof that witness made **previous inconsistent statements**. 2. Proof that the witness was **biased** against or partial to a party in the case. 3. **Previous convictions** and **bad character** (subject to some restrictions). 4. **Medical evidence** relevant to physical or mental disability affecting credibility.

Answer 223

"a statement **not made in oral evidence** in the proceedings … as evidence of any **matter stated** (where the purpose of stating that matter was to cause the other person / machine to **believe or act** on it.)" ## Footnote i.e. where evidence is given in court about something that the witness was told by someone else out of court

Answer 224

The **purpose** for which it is being adduced in evidence. If *at least one of its purposes* is to prove its **truth**, then likely hearsay. Otherwise, probably not.

Answer 225

1. **Statement** - oral, written, gesture, sketches, created images, or conduct that makes an assertion (not just a question). 2. **Not made in oral evidence in the proceedings** - not made in oral testimony *in the current case*. Note: Documents are, by definition, never made orally so will always be potential hearsay. 3. **Evidence of any matter stated** - if it is being used to prove something to be true.

Answer 226

“Could you sell me some heroin?” is a **mere question**, not a statement that anyone is a drug dealer / user. Hearsay must be: 1. A statement. 2. Not made in oral evidence in the proceedings. 3. Evidence of any matter stated.

Answer 227

Original evidence. A party might want to adduce original evidence to show the state of mind of the hearer.

Answer 228

Original evidence because the hearsay criteria are not met: 1. Statement ✓ 2. Not made in oral evidence ✓ 3. Evidence of any matter stated (i.e. B wanted D to believe they'd be shot) ✓ 4. Purpose of adducing to show that the threats were *true*? ✗ - D's purpose is not to prove the threats were true but that he *believed* them to be true, which is why he committed the offence. ## Footnote i.e. the original evidence is being adduced to prove the *effect* the words had on the defendant.

Answer 229

Hearsay criteria are not met: 1. Statement ✗- no statement that the defendant was a drug dealer. 2. Not made in oral evidence ✓ 3. Evidence of any matter stated ✗ - purpose of the sender was not to make the defendant believe their were a drug dealer or to act on that basis. 4. Purpose of adducing to show that they are a drug dealer? ✓

Answer 230

Hearsay criteria are not met: 1. Statement saying they raped complainant ✓ 2. Not made in oral evidence ✓ 3. Evidence of any matter stated ✗ - purpose of the sender was not to make the complainant believe there had been a rape or to act on the basis there was. 4. Purpose of adducing to show that they are a rapist? ✓

Answer 231

Hearsay criteria are not met: 1. Statement saying they had a gun ✓ 2. Not made in oral evidence ✓ 3. Evidence of any matter stated ✗ - purpose of the sender was not to make the defendant believe they had a gun or act on the basis they did. 4. Purpose of adducing to show that they have a gun? ✓

Answer 232

1. The original statement maker is **unavailable**. 2. The statement is contained in a **business document**. 3. The statement is an admissible **previous inconsistent statement** by a witness. 4. The statement is an admissible **previous statement** by a witness. 5. The statement is admissible as one of the **preserved common law exceptions**. 6. It is in the **interests of justice** to admit the statement. | Criminal Justice Act 2003

Answer 233

The maker is: 1. Dead 2. Unable to attend due to illness or disability 3. Outside the UK and it is not reasonably practicable to secure their attendance 4. Not able to be found despite reasonably practicable steps to find them 5. Kept away from court through fear

Answer 234

The general rule is that documentary evidence can be admitted if: 1. The *document* (as opposed to the information itself) was created or received by a person **in the course of a trade**, business, profession or other occupation or as the holder of a paid or unpaid office. AND 2. The *information* within it was supplied by a person who had or who can reasonably be supposed to have had **personal knowledge** of that information.

Answer 235

First-hand hearsay only: * The original statement maker is **unavailable**. * The statement is an admissible **previous inconsistent statement** by a witness. * The statement is an admissible **previous statement** by a witness. * The statement is admissible as one of the **preserved common law exceptions**. Multiple hearsay too: * The statement is contained in a **business document**. * It is in the **interests of justice** to admit the statement *(subject to a high reliability test)*.

Answer 236

1. ***Res gestae* statements** - a statement made at or about the time of an event is admissible to prove the truth of the things said. 2. **Contemporaneous mental or physical state** - admissible to prove that state (not the cause of it or any related matter). 3. **Part confession** - a confession, which includes a mixed statement (part inculpatory, part exculpatory) is admissible against the person who made the confession, that is, the defendant.

Answer 237

The event was so unusual, startling, or dramatic as to dominate the thoughts of the victim so that their utterances were instinctive, thus giving no real opportunity for reasoned reflection.

Answer 238

It might be admissible under the **contemporaneous mental or physical state** exception to prove *poison had been taken* but *not* to prove that it was the spouse who had administered the poison.

Answer 239

It is in the discretion of the judge.

Answer 240

A confession is a statement that is wholly or partly adverse to the maker whether made to a person in authority or not. It does not have to be made in words and can include actions as well.

Answer 241

1. Confession obtained via **oppression** (s76(2)(a)). 2. Things said or done to obtain the confession *might* make it **unreliable** (s76(2)(b)). 3. Admitting the confession as evidence would have such an **adverse effect on fairness** of the proceedings that it should not be admitted (s78).

Answer 242

1. Confession obtained via **oppression** (s76(2)(a)). 2. Things said or done to obtain the confession would be make **unreliable** (s76(2)(b)).

Answer 243

Torture, inhuman and degrading treatment. The use or threat of violence. (taking into account the characteristics and vulnerability of the suspect)

Answer 244

Offers of inducements to confess or innocent mistakes that lead to a potentially unreliable confession It does not have to be the police who say or do the things. It could be a crime victim or even a defence solicitor acting in error.

Answer 245

While the prosecution must prove beyond reasonable doubt that the confession does *not* qualify, the defence must demonstrate a **causal link** between things said and done and the confession being made.

Answer 246

Yes, although this might undermine how probative the further evidence is as no reference to the confession can be made.

Answer 247

Admitting the confession as evidence would have such an **adverse effect on fairness** of the proceedings that it should not be admitted (s78).

Answer 248

It applies to all evidence but most often confessions.

Answer 249

1. “It’s time we sorted things out.” Not hearsay – no intent to make person believe anything or act in particular way. 2. “That’s Andy.” Hearsay to show the person was Andy. 3. “I gather there was an argument about a girl.” Could be hearsay: seems to be knowledge based on being told this. 4. “I don’t want no trouble.” Not hearsay – no intent to make person believe anything or act in particular way.

Answer 250

**Confession:** On the grounds that mistreatment: 1. Was oppressive (s76(2)(a)) 2. Might have rendered any confession unreliable (s76(2)(b)) 3. Would make trial unfair if confession was admitted (s78) **Evidence of the knife:** 1. Admissible even if prosecution cannot refer to confession 2. Might be excluded on grounds of fairness (s78)

Answer 251

Yes, because as a personal diary entry the purpose of the out-of-court statement was not to cause *another person* to believe that statement to be true. It could be admissible as a non-hearsay statement if it is relevant to rebut an allegation of fabrication.

Answer 252

Yes, because it relates to a medical disability which is one of the exceptions to the rule of finality that generally limits evidence relevant only to the credibility of a witness being admitted.

Answer 253

Ask the witness to confirm that it is a statement the witness made and put the inconsistency to the witness.

Answer 254

Yes, but only if can be established that the employee is being kept away from court through fear. As for the evidence itself, the witness statement of the employee is an out-of-court witness statement being adduced to prove the truth of what the witness claims, namely that he overheard the statements being made. Therefore, one of the statutory exceptions would have to apply. The statements made by the defendant are being adduced simply to prove that they were said. They are being adduced not to show the truth of what was said but that the promises were false.

Answer 255

Yes, this is not identification evidence. This is evidence of description not identification so is not subject to any Turnbull rules. There is no rule about withdrawing poor description evidence or to issue any warnings – it is simply evidence of what the witness saw that can be subject to cross-examination or challenge in the usual ways.

Answer 256

Although there is no longer a presumption in favour of bail when a defendant has been convicted of an offence and is awaiting sentence, if a case is adjourned for **enquiries or a pre-sentence** or other report, the **right to bail remains**. The court may be persuaded to grant bail with conditions.

Answer 257

1. **Absolute good character** where they have no previous convictions and no other reprehensible behaviour proven against them. 2. **Effective good character** where they have previous convictions or cautions that are either minor, old, or irrelevant **(discretionary)**.

Answer 258

False, it is a matter for the tribunal of law only.

Answer 259

False, as long as someone has absolute *or effective* good character, they are entitled to a full good character direction.

Answer 260

1. **Credibility direction:** The jury should take the defendant's good character into account when deciding whether what they say may be true (if they testified or made pre-trial statements). 2. **Propensity direction:** The jury should take the good character into account when deciding whether the defendant is likely to have committed the offence (irrespective of whether they testify).

Answer 261

If the defendant has bad character but it is not particularly relevant, the judge may decide to give a modified good character direction. This involves either or both limbs of a full good character direction (i.e. credibility and/or propensity).

Answer 262

* **(a)** All parties to the proceedings agree. * **(b)** Directly adduced by D. * **(c)** Important explanatory evidence. * **(d)** Relevant to an important matter in issue between D and P. * **(e)** Substantial probative value in relation to an important matter in issue between D and Co-D. * **(f)** To correct a false impression given by D. * **(g)** Where D attacked another person's character.

Answer 263

* **(a)** All parties to the proceedings agree. * **(b)** Directly adduced by D. * **(c)** Important explanatory evidence. * **(d)** Relevant to an important matter in issue between D and P. * **(e)** Substantial probative value in relation to an important matter in issue between D and Co-D. * **(f)** To correct a false impression given by D. * **(g)** Where D attacked another person's character.

Answer 264

* **(a)** All parties to the proceedings agree **(all parties)**. * **(b)** Directly adduced by D **(D)**. * **(c)** Important explanatory evidence **(P)**. * **(d)** Relevant to an important matter in issue between D and P **(P)**. * **(e)** Substantial probative value in relation to an important matter in issue between D and Co-D **(Co-D)**. * **(f)** To correct a false impression given by D **(P)**. * **(g)** Where D attacked another person's character **(P)**.

Answer 265

Evidence of misconduct (an offence) or a disposition towards misconduct on the defendant’s part that is not part of the facts of the offence with which the defendant is charged or other reprehensible behaviour.

Answer 266

Automatically admissible bad character: 1. The bad character “**has to do with the alleged facts** of the offence with which the defendant is charged”. 2. The bad character evidence is evidence of **misconduct in connection with the investigation** or prosecution of the offence.

Answer 267

Without with “the court or a jury would find it impossible or difficult properly to understand other evidence in the case”. *and* The evidence has substantial value for understanding the case.

Answer 268

Yes, if it is relevant to an important matter in issue between P and D, such as involvement in a gang offence.

Answer 269

1. The defendant has previously been convicted of offences of the **same description**. OR 2. The defendant has previously been convicted of offences of the **same category** (theft offences or sexual offences against persons under 16). OR 3. **Other convictions or non-convictions** of particular relevance. (and the above makes it more likely they committed the offence and it is not unjust to admit)

Answer 270

True, but the more convictions there are, the more likely propensity is to be established.

Answer 271

Truthfulness needs to be in issue. Dishonesty offences not necessarily enough but perjury or perverting the court of justice might be.

Answer 272

1. The matter in issue must be **between the defendant and a co-defendant**, and 2. The character evidence must have **substantial probative value**.

Answer 273

No, they need to be pursuing a **"cut-throat defence"** i.e. blaming each other.

Answer 274

No, the defendant needs to be inaccurately selective or actively seeking to give a false impression whether orally, by implication, or conduct. They can also avoid triggering the gateway by withdrawing or dissociating from an earlier impression.

Answer 275

No, it can be in testimony, when under caution, or when charged.

Answer 276

Either: 1. If evidence is called or matters are put to that other person in cross-examination. 2. If the defendant makes such statements when being questioned under caution or when charged with an offence. (in relation to that person having committed an offence or reprehensible behaviour)

Answer 277

False, this is not normally enough.

Answer 278

True, if the defendant argues conspiracy of some kind, this will generally be enough.

Answer 279

The court *must not* admit bad character evidence at trial under the following gateways under s101(1) of the *Criminal Justice Act 2003* if it would have an **adverse effect on fairness** of the proceedings: * **(d)** Relevant to an important matter in issue between D and P. * **(g)** Where D attacked another person's character.

Answer 280

S78 PACE says that the court *may* refuse to allow the evidence; for these two gateways, the court *must not* allow it.

Answer 281

Under s78 PACE, the court *may* refuse to allow evidence if it would have an **adverse effect on fairness** of proceedings.

Answer 282

Bad character evidence in respect to witnesses is much more restricted. It can only be admitted if: 1. It is **important explanatory evidence** and its value for understanding the case is **substantial**. OR 2. It has **substantial probative value** in relation to a matter of **substantial importance**. OR 3. All parties **agree**.

Answer 283

False, for witnesses it must be important explanatory evidence **and** its value for understanding the case must be **substantial**.

Answer 284

1. **APPLY:** Written application in pro forma setting out the facts of misconduct, how they will be proven, and why the evidence is admissible. 2. **NOTICE:** Served up to 20 business days after a not-guilty plea in the mags or up to 10 business days after a not-guilty plea in Crown. (unless procedural requirements waived by court or defendant)

Answer 285

They should apply within **10 business days**, explaining the basis of objection. Their objection will then be handled at a pre-trial hearing or on the day of trial in the absence of the jury.

Answer 286

No, s78 PACE can only be used by the prosecution.

Answer 287

The **reliability** and **overall value** of the evidence in establishing that the defendant may have committed an offence.

Answer 288

1. **Impossibility of fair trial:** Impossible to try the defendant due to excessive pre-trial publicity or where evidence that might favour the defence has been lost e.g. CCTV potentially showing the defendant acting in self-defence. 2. **Impossibility of fair outcome:** A trial would offend the court’s sense of justice and propriety in the particular circumstance of a particular case e.g. extreme entrapment.

Answer 289

The court **may** direct the jury to consider whether the previous conviction makes it less likely that the defendant committed the fraud offence and more likely to be telling the truth (i.e. **effective good character**).

Answer 290

Yes, as bad character that has to do with the offence. Racist tweets are almost certainly going to be classed as “reprehensible behaviour” and therefore subject to the rules on bad character evidence.

Answer 291

It is likely to decide that it is admissible without notice as misconduct in relation to the prosecution of the offence.

Answer 292

It is potentially admissible under gateway (d) in s 101(1)(d) of the Criminal Justice Act 2003 as evidence relevant to matter in issue between the prosecution and the defence (the defendant’s propensity to offend). It would be admissible on that basis by reason of being in the same category of offences (the theft category). However, the evidence is likely to be excluded on the grounds that it would be unjust to admit it given the lack of strong probative value of a theft from a care home in showing a propensity to commit robbery.

Answer 293

They can admit the convictions as evidence of a propensity to offend, given the circumstances and nature of the offences. The convictions might indicate a propensity towards football violence without being of the same type or in a statutory category.

Answer 294

Yes, potentially, as misconduct relevant to an important matter in issue between the prosecution and defence. The evidence could show an inclination to steal from employers and also (depending on the facts) methods of doing so. Unproven accusations would have to be proven by evidence at trial (for example, calling witnesses of the original offence).

Answer 295

Only if the court decides that the convictions have substantial probative value in proving defendant B’s propensity towards violence. There is an additional requirement for proof of bad character against a co-defendant that the evidence must have substantial probative value (that is, it must assist the defendant admitting it to avoid conviction).

Answer 296

No, because the evidence would not correct any false impression that the defendant has given as to honesty. Evidence of bad character is not generally admissible to disprove claims of good character. Evidence is only admissible to the extent that it corrects the false impression and evidence of sexual impropriety is not likely to correct an impression that the defendant is honest.

Answer 297

Argue that a single conviction does not establish propensity or make it more likely that the defendant committed the instant offence. The court should consider whether the previous conviction is likely to show propensity (it probably is in this case) and then whether it makes it more likely that the defendant committed this particular offence (which could be challenged in this case given the time gap and the differences in the age of the child). If that fails, the court could also be asked to consider excluding it as unjust or unfair.

Answer 298

The prosecution are ***not* obliged** to do so in the **magistrates’ court**.

Answer 299

A preparation for trial hearing, which usually happens at first appearance.

Answer 300

1. Understands about **credit** for a guilty plea. 2. Takes a **plea** (or otherwise find out what the likely plea will be). 3. Where there is not guilty plea, understands that, at trial, (i) they will have the right to **give evidence**, (ii) the trial can take place in their **absence**, and (iii) if on bail, a **failure to attend** court will constitute an offence.

Answer 301

A form used in the magistrates' court, usually completed before the preparation for trial hearing (but if not, completed at hearing itself). It sets out the **key issues** in the case where the defendant intends to plead not guilty. Also any **informal admissions**.

Answer 302

* Real (actually disputed) **issues**. * Points of **law** that may arise. * **Evidence** that can be agreed and read out under *s9 of the CJA 1967*. * Formal **admissions** to be made under *s10 of the CJA 1967*. * Whether **applications** for special measures, character, or hearsay evidence are anticipated. * The number of **witnesses** and dates of their availability. * Whether police **interview record** can be agreed.

Answer 303

The magistrates' court may make a ruling on matters relating to the admissibility of evidence or a question of law before trial at a distinct hearing if: 1. It is in the **interests of justice**. 2. The parties have had an opportunity to be **heard**. 3. An unrepresented defendant has been offered **legal representation**.

Answer 304

Within **70 days** of being sent to the Crown Court (or **50 days** if the defendant is in custody).

Answer 305

1. A draft **indictment**. 2. **Witness statements** of all witnesses they intend to rely on. 3. A list of **exhibits** they intend to produce. 4. A list of **unused evidence**.

Answer 306

1. Preparation for trial hearing - in **magistrates' court**, usually held at first appearance. 2. Plea and Trial Preparation Hearing - in **Crown Court**, listed within 28 - 35 days of the case being transferred to the Crown Court.

Answer 307

It should be listed within **28 - 35 days** of the case being transferred.

Answer 308

1. Availability of witnesses. 2. Witness summonses or special measures. 3. Orders for disclosure. 4. Legal issues like bad character and hearsay evidence.

Answer 309

Options: 1. **Plead guilty** – whereupon the court will move to sentence immediately or adjourn for a pre-sentence report. 2. ***Goodyear* Indication** - ask for an indication of likely sentence if they were to plead guilty – if they do so, then that indication becomes binding. 3. **Plead not guilty** – whereupon the judge will set a timetable and make such directions as are appropriate so that the case can be set down for trial.

Answer 310

For long and complex cases that are likely to involve a lengthy trial e.g. serious fraud. Also to identify issues material to the jury' verdict, assist their comprehension, expedite jury trial, address issues of severance or joinder of counts on the indictment, and otherwise assist the judge with case management.

Answer 311

Preparatory hearings.

Answer 312

**Used material** - information that identifies the prosecution's case. **Unused material** - information in the prosecution's control that *may* assist the defence's case.

Answer 313

**Magistrates' Court** * Where the defendant is likely to plead not guilty, the police should put together a **Streamlined Disclosure Certificate** setting out the potential unused material. **Crown Court** * A schedule called an **MG6C** is prepared by the police disclosure officer, which is then reviewed by the prosecutor who makes a decision as to disclosure.

Answer 314

The prosecution has an **[1] ongoing** duty to provide the defence with a list of evidence they have **[2] or are aware of** that might reasonably be considered capable of undermining the prosecution case **[3] or assisting the defence case**.

Answer 315

They must make a **public interest immunity application** to a court *in private* and seek to withhold that information.

Answer 316

Once the prosecution has complied with their **initial disclosure** obligations for **unused material**.

Answer 317

**Defence statement:** 1. Basis of defence. 2. Points of dispute with prosecution case. 3. Points of law to be raised / challenged. **Other documents:** 1. List of witnesses and their personal details (so their character can be checked by police).

Answer 318

It may assist them in obtaining further unused material by inviting a review of what could reasonably undermine the prosecution case or assist the defence case.

Answer 319

**Adverse inferences** may be made against the defendant.

Answer 320

**Adverse inferences** may be made against the defendant.

Answer 321

**Competence:** * All witnesses are assumed competent unless it can be shown that they are unable to (a) understand the questions put to them and (b) give intelligible answers. * However, a defendant is *not* competent to give evidence for the prosecution or a co-defendant unless and until their are convicted. **Compellability** * Whether a witness can be obliged to testify by one or more parties. Therefore, a defendant can be competent but not compellable.

Answer 322

Aged 14 or over **and** Has sufficient appreciation of the solemnity of the occasion and the particular responsibility to tell the truth involved in taking an oath.

Answer 323

**By defence:** They are competent and compellable (unless jointly charged). **By prosecution or co-defendant:** Unless jointly charged, they are competent but not compellable *unless:* 1. **Domestic abuse:** The defendant is charged with an offence involving actual or threatened assault or injury to them. 2. **Abuse of a minor:** The defendant is charged with an offence involving actual or threatened assault of or sexual offence against a person under 16.

Answer 324

Yes, because the child was under the age of 16 at the time. Joint charge - no longer 'jointly charged' as one has pleaded guilty. Divorce - the divorce needs to be finalised by in any event abuse of a minor under 16 is an exception to rule that spouse not compellable.

Answer 325

The divorce has been officially finalised.

Answer 326

A further summons can be backed by an arrest warrant if all of the above apply: 1. They are to produce **material evidence**. 2. They have been **properly served** with a summons. 3. They have **no “just excuse”** for failing to attend.

Answer 327

1. **Child witnesses:** A witness under 18 *at the time of the hearing*. 2. **Disabled witnesses:** A witness with a physical or mental disorder or social or cognitive impairment likely to diminish the quality of their evidence. 3. **Distressed witnesses:** A witness' evidence is likely to be affected by fear or distress at having to testify.

Answer 328

* Via intermediary. * Communication aids.

Answer 329

* Video recording of evidence-in-chief. * Cross-examination and re-examination via live link.

Answer 330

As long as the court is satisfied that this would not diminish the equality of their evidence.

Answer 331

The judge or magistrates (not the defendant).

Answer 332

Giving evidence in private.

Answer 333

1. The **recorded video interview** to the police is presumptively admissible as examination-in-chief in Crown Court trials unless not in the interests of justice. 2. Pre-trial **videoed cross-examination** is also available in the presence of the judge (not defendant). 3. If no pre-trial cross-examination, it will take place behind a **screen**.

Answer 334

False, the judge should *consider* doing so, but is not strictly obliged.

Answer 335

**Vulnerable adults** - may be permitted to give evidence over live link *if* in the interests of justice and they suffer from a mental disorder or significant cognitive or social impairment. **Defendants under 18** - the test is whether their level of cognitive or social impairment is compromised so that a live link would enable them to participate more effectively. (in both cases, the test is whether the measures would enable them to participate more effectively)

Answer 336

At the plea and trial preparation hearing.

Answer 337

There must be a plea and trial preparation hearing and may be a further preparatory hearing.

Answer 338

The video interview will stand as evidence-in-chief, and cross-examination will take place behind a screen.

Answer 339

If they cannot secure special measures for the witness, they can compel them to attend or try to get the statement admitted as hearsay evidence.

Answer 340

If they cannot agree having considered the matter fully, the case will have to be **adjourned** for a rehearing. There is no casting vote and the Chair does not have any higher status than other magistrates.

Answer 341

The comment is admissible as a confession and therefore can be adduced without making an application to the court. | (confessions are an exception to the hearsay rule)

Answer 342

Yes, if it is proven that the defendant **actually realised** that the lives of others were endangered by this work.

Answer 343

No, they must make the trial judge aware of this information and seek a ruling.

Answer 344

Yes, to prove that the defendant, but not the co-defendant, was in Leeds instead of York. This is potentially a confession (an adverse statement) but such statements are only admissible against the maker (the defendant) so it would not be admissible against the co-defendant.

Answer 345

The accountant may be judged to be of **effective good character**, if so judged, they will be entitled to the good character direction **in full**.

Answer 346

To provide a structured process for determining the sentence for particular offences or types of offences.

Answer 347

* Punishment of offenders. * Reduction of crime (including deterrence). * Reform and rehabilitation of offenders. * Protection of the public. * Offenders making reparation to persons affected by crime.

Answer 348

It is the legal framework under which sentencing is regulated, established by the Sentencing Act 2020.

Answer 349

False, the should use them as the starting point and range of sentence but can diverge from them if following them would be against the **interests of justice**.

Answer 350

1. Determine the **sentencing category** for the particular offence according to the guideline. 2. Impose a **sentence** that is in the **offence range** in the guidelines (but not necessarily the *category* range).

Answer 351

Although the court is not necessarily required to impose a sentence within the specified category range, failing to do so without good reason may be a ground for **appeal**.

Answer 352

1. Use culpability and harm to determine the **offence category**. 2. Use the offence category to determine the **starting point** and **category range**. 3. Adjust the category range according to **aggravation / mitigation**. 4. Reduce the sentence for a **guilty plea** (if applicable). 5. Reduce the sent for **assistance** by the offender (if applicable).

Answer 353

* Plea at **first hearing = 33%**. * Plea thereafter **capped at 25%** but can be as low at 10% for a last-minute plea.

Answer 354

There is no statutory measure, but will depend on quality, quantity, accuracy and timeliness of the information.

Answer 355

* Aggravating factors. * Mitigating factors. * Seriousness as a function of culpability and harm.

Answer 356

**STATUTORY AGGRAVATING FACTORS:** 1. Previous convictions. 2. Offence committed while on bail. 3. Racial or religious aggravation. 4. Hostility based on race, religion, disability, sexual orientation or transgender identity.

Answer 357

If hostility of that kind is already an **element of the offence**.

Answer 358

1. Lack of previous convictions / good character. 2. Remorse. 3. Age and lack of maturity. 4. Role or sole or primary care. 5. Offence committed on impulse. 6. High degree of provocation.

Answer 359

* **Immediate** custodial sentences. * **Suspended** custodial sentences.

Answer 360

**Concurrent** - a sentence where multiple offences are served at the same time. Appropriate whether the offences arise out of the same incident / facts especially if against the same person ***(default)***. **Consecutive** - a sentence where multiple offences are served one after the other. Appropriate whether the offences arise out of unrelated incidents / facts or are of a similar kind but the overall criminality will not be sufficiently reflected by a concurrent sentence.

Answer 361

The overall sentence must not be disproportionate to the overall seriousness of the offending.

Answer 362

A custodial sentence cannot be imposed unless the offence is **so serious that neither a fine nor a community sentence can be justified**. It is determined based on culpability and harm factors.

Answer 363

A community sentence *can* (not must) be imposed if the offence or combination offences are **serious enough to warrant it**.

Answer 364

1. **Custodial sentences:** Immediate or suspended provided the offence passes the custody threshold. 2. **Community sentences:** One or more requirements to be served in the community provided the offence passes the community sentence threshold. 3. **Fines:** Monetary penalties levied according to the seriousness of the offence and the offender's ability to pay. 4. **Discharges:** The least punitive orders involving no immediate punishment. They may be absolute or conditional on future good behaviour.

Answer 365

**Fines** are paid to the state. **Compensation** is paid to the victim.

Answer 366

A custodial sentence that is not immediately enforced but can be activated if conditions are breached.

Answer 367

The maximum sentence for some crimes (e.g. rape and robbery), with a specified minimum term unless a whole life sentence is warranted.

Answer 368

Minimum custodial sentences that *must* be imposed for repeated commission of certain offences.

Answer 369

The court *should* reimpose the full original sentence or a shorter custodial sentence *unless* it is unjust to do so.

Answer 370

To minimise the aggravating features of the offence(s) and address personal circumstances of the offender. The court will indicate the sentence they are considering so the defence representative can address these issues.

Answer 371

**Maximum sentences:** * For one offence, **6 months**. * For 2+ either-way offences, **12 months**. **Minimum sentences:** * Not less than **5 days**. | (if sentencing powers are inadequate, they can commit to Crown Court)

Answer 372

1. Domestic burglary = **3 years**. 2. Class A drug trafficking = **7 years**. The second previous offence must have been committed **after conviction** (not sentence) of the first offence.

Answer 373

If it would be **unjust** to do so.

Answer 374

A sentence that can be imposed for imprisonable offences, supervised by the probation service. Requirements: 1. It must contain at least one requirement to reflect **punishment** (unless combined with a fine or there are exceptional circumstances). 2. It can only be imposed for **imprisonable offences** and only if **serious enough**. 3. A **pre-sentence report** is obtained (unless unnecessary). ## Footnote The total duration can be no longer than 3 years.

Answer 375

* Unpaid work * Rehabilitation or programme requirements * Prohibited activity * Curfew * Exclusion * Residence * Foreign travel prohibition * Mental health, drug or alcohol treatment and monitoring * Attendance centre * Electronic monitoring ## Footnote These requirements are tailored to the offender's circumstances.

Answer 376

40–300 hours over a 12-month period. ## Footnote This is under supervision or with other groups.

Answer 377

Level 5: Unlimited. ## Footnote Other levels include: Level 1 (£200), Level 2 (£500), Level 3 (£1,000), Level 4 (£2,500).

Answer 378

Compensation order. ## Footnote Payment for personal injury, loss, or damage must be prioritized over fines.

Answer 379

* **Absolute discharge:** No further action taken. * **Conditional discharge:** A period of up to 3 years during which no further offences can be committed.

Answer 380

A trial to determine the relevant factual issues when there is a dispute about the factual basis of an offence. The prosecution must prove disputed issues beyond reasonable doubt.

Answer 381

**Sentence:** 14 days - 2 years. **Operational period:** 6 months - 2 years. ## Footnote It must be serious enough to pass the custody threshold.

Answer 382

True. ## Footnote The magistrates’ court has limited power to impose custodial sentences for breach.

Answer 383

The court must inform the defendant that a custodial sentence is still possible. ## Footnote This ensures the defendant understands the potential outcomes.

Answer 384

Almost never.

Answer 385

Until 21 years old.

Answer 386

1. It is **mandatory**. e.g. murder. 2. The offence passes the **custody threshold**. 3. The defendant **refuses** to agree to a **community sentence**.

Answer 387

50% *Exception:* 66% if convicted of violence and specified sexual offences.

Answer 388

If the offender was subject to **curfew** and **electronic tagging**. | (but deducted to lesser extent based on calculation of a credit period)

Answer 389

Considerations: * There is a realistic prospect of rehabilitation. * There are strong personal mitigation / immediate custody would result in significant harm to others.

Answer 390

False, a suspended sentence cannot be combined with a community order. Only a fine.

Answer 391

The offender will be eligible for **release on licence**.

Answer 392

* Unpaid work - 40-300 hours over 12 months. * Curfew - 12 months. * Exclusion - 2 years. * Foreign travel prohibition - 12 months. * Attendance centre - 12-36 hours.

Answer 393

Under 25 years old.

Answer 394

Seriousness and means.

Answer 395

If an **imprisonable summary offence** does not specify a level, it is treated as a **level 3 (£1,000)** offence.

Answer 396

A term in default order specifies a period of **imprisonment** if the fine is not paid (the maximum period depending on the level of fine).

Answer 397

A compensation or any ancillary orders e.g. confiscation of property or being added to a sexual offenders' register (also costs).

Answer 398

False, it goes into a pool of money that is then distributed.

Answer 399

1. Court determines **relevant facts**. 2. Prosecution presents information about the defendant's **character** and **antecedents**. 3. Prosecution presents any **pre-sentencing reports**. 4. Prosecution outlines other relevant information e.g. **victim statements**. 5. Defences enters a **plea in mitigation**.

Answer 400

* The prosecution will usually outline the facts of the case. * The defendant may wish to advance a **written basis of plea** or factual basis of plea (such a basis should be unequivocal and unambiguous or the judge is not obliged to accept it). This may have been accepted by the prosecution either as part of an earlier plea agreement or at court. * If the judge doesn't accept the factual basis (whether agreed with the prosecution or not), and this is likely to make a material difference, a ***Newton* hearing** should be held.

Answer 401

* If a defendant’s case is accepted following a Newton hearing, their guilty plea discount is not lost. * If the prosecution’s case is proven, the judge *may* reduce the discount.

Answer 402

The discharge means that they have no further punishment but will be subject to be resentenced if they commit an offence within the next 2 years.

Answer 403

If the offence is serious enough to pass the custody threshold but the appropriate sentence is between 14 days and 2 years. Only custodial sentences of 14 days to 2 years can be suspended.

Answer 404

A discharge or a fine because a community order and custody can only be imposed for imprisonable offences.

Answer 405

1. **Persuade** the magistrates to set aside a conviction or rescind a sentence. 2. Appeal to the Crown Court for a **retrial**. 2. Take the matter to the High Court by way of **"case stated"**. 3. Use **judicial review** to challenge aspects of the decision-making and procedure of the magistrates.

Answer 406

No time limit; without unreasonable delay.

Answer 407

A defendant (only) can appeal their conviction, sentence, or both. They must send **written notice** (using pro forma) within **15 business days** of conviction or sentence to the court that heard the case and each party, identifying: * What is being appealed and why. * How long the first trial took. * How long the Crown Court hearing is likely to take.

Answer 408

1. Persuade them to reconsider - **both**. 2. Appeal to Crown Court for retrial - **defendant**. 3. Appeal to High Court by way of "case stated" - **both**. 4. Judicial review - **both**.

Answer 409

Because once appealed by way of case stated, the route to appeal to the Crown Court closes.

Answer 410

* **Who:** 1 x Crown Court judge and 2 x lay justices who did not hear the original case. The decision is by majority (the judge can be outvoted). * **How:** A complete rehearing, following the same procedure as a magistrates’ court trial. The parties can call different witnesses. * **Rationale:** The judge presiding over the case should give reasons for the decision whether the appeal succeeds or not (incl. where there are further grounds of appeal e.g. by way of "case stated").

Answer 411

1. **Confirm, vary or reverse** the magistrates’ decision in whole or in part. 2. **Remit** the matter back to the magistrates’ court with its opinion. 3. If it convicts or is considering sentence, it may **(re-)sentence** the appellant (including to a harsher sentence).

Answer 412

The Crown Court may not pass a sentence above the maximum sentencing powers of the magistrates’ court, even if it thinks the case should have been committed to the Crown Court for sentencing.

Answer 413

An unsuccessful appellant may be required to pay prosecution costs. A successful appellant may be awarded costs.

Answer 414

1. **APPLICATION:** An application should be made **within 21 days** of sentence or disposal of the case, identifying the question of law and a request to the magistrates' court to "state a case". 2. **STATEMENT OF CASE:** Drafted by authorised court officer **within 21 days** in consultation with the magistrates. 3. **SERVICE:** The draft statement of case must be served on all parties **within 15 business days** of the decision to state a case.

Answer 415

Both decisions of the magistrates’ court and decisions of the Crown Court following an appeal from the magistrates’ court can be appealed (but not a matter tried in the Crown Court or sent to the Crown Court for sentence).

Answer 416

1. Decision in issue. 2. Question of law or jurisdiction. 3. Summary of proceedings, contentions of parties, relevant findings of fact.

Answer 417

* **Who:** 2-3 judges of the Divisional Court. Decisions my majority. * **How:** The court must base its decision on the facts as stated in the statement of case. There is no rehearing of the evidence and only legal submissions by the parties. However, the court may consider any defences available on the facts stated, even if they were not argued in the magistrates’ court.

Answer 418

1. **Reverse, affirm or amend** the decision of the magistrates’ court. 2. **Remit** the case to the magistrates’ court with its opinion. 3. Make any **other order** as it sees fit, including orders for costs.

Answer 419

1. **Leave to appeal:** This can be granted by the Crown Court judge (rare) or by the Court of Appeal (usually a single appellate judge without a hearing). 2. **Registrar of Criminal Appeals:** Notice / leave to appeal lodged within 28 days of conviction or sentence being appealed (subject to extension if good reason). 3. **Prosecution notified:** The prosecution should be notified of the appeal and may give notice that it wishes to be heard at the appeal. 4. **Application:** The application should include the grounds of appeal (a formally drafted legal document, setting out the points of law or fact upon which the appeal is based) and a list of authorities supporting those grounds.

Answer 420

1. Conviction following trial on indictment on grounds that it is **"unsafe"**. 2. Sentence following trial on indictment or committal for sentence on grounds that it is **wrong in law or principle**, or **manifestly excessive**. 3. Appeals from the **Criminal Cases Review Commission**.

Answer 421

If leave is refused, the defendant has **10 business days** to renew the application before the full court. This will constitute the actual appeal hearing.

Answer 422

* A defendant’s skeleton argument must be served at least **21 days** before the hearing. * A respondent’s argument at least **14 days** before the hearing.

Answer 423

Enough to create a reasonable or "lurking" doubt that unsafe e.g.: * Misdirections to the jury. * Inadequate or biased directions. * Irregularities in the jury’s deliberations.

Answer 424

Fresh evidence may be heard if it is **necessary** and **expedient** in the **interests of justice** (e.g. advances in science raising new questions about DNA).

Answer 425

Time served in custody from the start of appeal to the point of the direction will not count towards a custodial sentence. (The single judge will identify cases where such a direction should be given if the appeal is pursued further).

Answer 426

Only appeal to the **Court of Appeal**.

Answer 427

1. Quash and **acquit**. 2. Quash and **convict** for a *lesser* offence for which the defendant could have been convicted at trial (a lesser alternative to the appealed offence or an offence appearing on the trial indictment). 3. Quash and order a **retrial** for the offence appealed or for which the defendant could have been convicted at trial.

Answer 428

Quash the sentence and pass any sentence that it feels appropriate as long as it is not more severe (overall) than that imposed in the court below.

Answer 429

1. **Unduly lenient** Crown Court sentence. 2. A **point of law** following an acquittal (but will not change actual acquittal).

Answer 430

The prosecution can seek an appeal that will potentially influence the outcome of a conviction under the **“terminating ruling” procedure**. For example, the prosecution could appeal against a ruling of “no case to answer”, though this would require the prosecution to provide an **undertaking** that they will not offer evidence against the defendant if the appeal fails.

Answer 431

Purely based on the facts before the sentencing judge, unless new material relevant to sentence discovered.

Answer 432

The prosecution cannot appeal to the Crown Court so will have to appeal to the High Court by way of **case stated**. Unlike appeals from the Crown Court to the Court of Appeal, case stated appeals can lead to the quashing of an acquittal. In such circumstances, the court could remit the matter for a rehearing or even substitute a conviction and resentence.

Answer 433

Appeals of conviction to the Court of Appeal are only possible for convictions on **indictment**. The only other available appeal route is by way of case stated to the High Court.

Answer 434

A person under age 10.

Answer 435

1. The magistrates sit on the same level. 2. Witnesses give evidence sitting down. 3. The defendant is addressed by their first name. 4. The language of the process is less formal. 5. Instead of a “conviction”, the “case is proven”. Instead of an “acquittal”, it is “not proven”.

Answer 436

* Court officers. * Parties. * Solicitors. * Witnesses. * Victim (unless not in interests of justice). * Parents or guardians. * News reporters.

Answer 437

Up to 24 months.

Answer 438

24 months.

Answer 439

1. Serious crimes (murder, manslaughter, attempted murder). 2. Youths accused of committing a crime alongside an adult.

Answer 440

1. Murder. 2. Manslaughter. 3. Attempted murder. 4. Firearms offence (if 16-17 years old and subject to mandatory minimum of 3 years).

Answer 441

An offence that carries a maximum sentence of 14 years or more (if committed by an adult e.g. robbery), as well as some sexual offences specified in the *Sexual Offences Act 2003*. The youth court must determine that a custodial sentence **substantially exceeding 2 years** is a realistic possibility.

Answer 442

In the Youth Court and, as a "grave crime", it will remain in the Youth Court unless a custodial sentence substantially over 2 years is a realistic possibility.

Answer 443

The magistrates' court, who must decide where the youth will be tried.

Answer 444

* If the youth pleads **not guilty**, they will be sent to the Crown Court for trial as well if it is in there **interests of justice** for the two to be tried jointly. * If the youth pleads **guilty**, they will usually be sent for sentencing to the **youth court** unless a significant sentence is necessary.

Answer 445

There is a presumption that it is in the interests of justice to try the youth separately in the youth court. However, factors that will be considered include: 1. Interests of witnesses. 2. Danger of injustice to the case if tried separately.

Answer 446

False, because a youth can be committed to the Crown Court for sentence for a grave crime. Similarly, if a youth is transferred to the Crown Court and is convicted there, the Crown Court must consider sending the youth back to the youth court for sentencing anyway.

Answer 447

Given the youth court’s greater **expertise** in **youth sentencing** and power to impose referral orders, the Crown Court will usually transfer to the youth court for sentencing. However, it may not be appropriate if a significant sentence is necessary.

Answer 448

The youth will be asked to indicate a plea at the plea before venue hearing. * If *both* the youth and adult plead **not guilty**, then the magistrates' court *must* try the youth (there is no interests of justice test). * If the adult pleads **guilty** but the youth pleads **not guilty**, then the magistrates' court *may* try the youth or may remit to the youth court. * If the youth pleads **guilty** (or is subsequently found guilty) then, regardless of how the adult pleads, they will be remitted to the youth court where the magistrates' sentencing powers are inappropriate.

Answer 449

1. Prevention of offending by young people. 2. Ensuring their welfare (i.e. proper education, removal of undesirable surroundings, outcomes in their best interests).

Answer 450

True, although there is an emphasis on rehabilitation, taking responsibility, and not criminalising if it is not necessary.

Answer 451

1. Youth rehability order (YRO) with intensive supervision and surveillance - **under 15**. 2. YRO with fostering - **under 15**. 3. DTO - **12-14**.

Answer 452

According to the *Sentencing Children and Young People Guideline*, if either: 1. There have been **three findings of guilt** for **comparable imprisonable offences** in the past 12 months. 2. The youth is being sentenced for **multiple offences** at the same time, even without a prior history.

Answer 453

False, they *can* but they don't have to.

Answer 454

YRO with intensive supervision and surveillance or fostering. Detention and training order (DTO).

Answer 455

YRO with intensive supervision and surveillance or fostering. Detention and training order (DTO).

Answer 456

None of them require the youth to be a persistent offender.

Answer 457

A referral order is intended to be the usual response to a first-time offender. The youth is referred to a **Youth Offender Panel**, which will meet with the defendant and their parent or guardian to agree a contract with the aim of rehabilitating the defendant over a 3-12 month period.

Answer 458

It may be referred back to the court. The court may decide to allow the order to continue or revoke and re-sentence.

Answer 459

If the defendant has responded well and it is in the interests of justice to do so.

Answer 460

All of the following: 1. Convicted of an **imprisonable offence**. 2. **No previous convictions** (except conditional discharges and being bound over). 3. The defendant has **pleaded guilty**. 4. A discharge, a hospital order or custody is not appropriate.

Answer 461

The court may impose a referral order unless it considers detention more appropriate. Where a referral order is possible (ie the defendant has pleaded guilty) but the case is serious enough for a custodial sentence, the magistrates need to determine which is more appropriate.

Answer 462

A referral order is **discretionary** if only some of them are met (and a custodial sentence or discharge isn't otherwise required by law).

Answer 463

In the Youth Court and they must be sent to the Crown Court, the defendant has no right of election. Homicide cases are always sent to the Crown Court but the case will appear first in the Youth Court unless a youth is charged with an adult.

Answer 464

True, referral orders are only available where they pleaded guilty.

Answer 465

A YRO is a community sentence. Like an adult community sentence, it is built out of a combination of “requirements” reflecting the overall seriousness of the offence and can last up to 3 years.

Answer 466

A YRO is only imposed if the offence is “serious enough” to justify such an order, but the order is then discretionary, and so other less serious disposals may instead be imposed if appropriate.

Answer 467

Up to 90 days.

Answer 468

Up to 12 hours for those aged 10 to 13 and up to 24 hours for those aged 14 or 15.

Answer 469

Maximum 12 months and between 2 and 16 hours a day.

Answer 470

Maximum 3 months.

Answer 471

Maximum 6 months.

Answer 472

1. **Fostering requirement:** Up to 12 months, placing the defendant in the care of a different foster parent. It should only be used if the circumstances in which the defendant was living at the time was a factor in the commission of the offence. 2. **Intensive supervision and surveillance requirement:** A package of requirements, including between 90 to 180 days of extended activity requirements, plus supervision, curfew and electronic monitoring requirements.

Answer 473

1. A residence requirement. 2. An unpaid work requirement (between 40 and 240 hours) 3. An attendance centre requirement of between 12 and 36 hours.

Answer 474

4, 6, 8, 10, 12, 18 or 24 months (of which 50% is spent in detention and 50% under supervised release) There is no suspended version.

Answer 475

The youth offender is ordered to carry out up to 24 hours of supervised reparation, either to a person or the community over, a 3-month period.

Answer 476

The court *must* order the parent or guardian of a child under 16 to pay it and *may* do so for a child aged 16 or over.

Criminal Practice Flashcards

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