1
Q
In what situations does the defendant not have a presumption of bail?
A
No presumption of bail when:
- Defendants appealing conviction/sentence;
- Defendants committed to the Crown Court for sentencing;
- The defendant has been charged with murder.
2
Q
What are the general grounds to object to bail?
A
The court can refuse bail if any one of:
- Fail to attend court for subsequent hearings (abscond),
- Commit further offences on bail,
- Interfere with witnesses or obstruct justice.
3
Q
What are the additional requirements for the absconding ground for imprisonable summary-only offences?
A
- Defendant has a prior arrest for absconding, or
- Defendant was arrested for breach of bail conditions (reasonable suspicion they would).
4
Q
What are the additional requirements for the committing further offences ground for imprisonable summary-only offences?
A
- Defendant was on bail at the time of the alleged offence, or
- Defendant was arrested for breach of bail conditions (reasonable suspicion they would).
5
Q
What are the additional requirements for the interference ground for imprisonable summary-only offences?
A
Defendant was arrested for breach of bail conditions (reasonable suspicion they would).
6
Q
What are the factors which the court considers to decide if the grounds to object to bail exist?
A
- Nature/seriousness of offence and the likely sentence
- Defendant’s: Personal character and circumstances, Previous convictions, Criminal associations, Community ties.
- Past bail record (record of absconding).
- Strength of evidence.
7
Q
What are the discretionary grounds for the court to grant bail?
A
- Custody is required for the defendant’s own protection.
- Court has insufficient information to decide bail and needs time to gather evidence.
- Defendant is already serving a custodial sentence.
8
Q
What are the common bail conditions?
A
- Residence,
- Curfew,
- Reporting,
- Surety,
- Security,
- Geographic Restrictions,
- Contacts Restrictions,
- Electronic Monitoring,
- Bail Hostels,
- Surrendering Passport.
9
Q
What is the exception to the rule that, after absconding, bail generally does not need to be granted again?
A
If absconding occurred before conviction and there is no realistic chance of a custodial sentence.
10
Q
What are the gateways to admit hearsay evidence related to the inability to attend under s116 CJA 2003?
A
- Witness is dead,
- Witness is unfit to testify,
- Witness is outside the UK and cannot practically attend,
- Witness cannot be found, despite reasonable efforts,
- Witness refuses to attend due to fear.
11
Q
What are the gateways to admit hearsay evidence related to documents under s117 CJA 2003?
A
- Hearsay is contained in a business document,
- Hearsay is contained in a document for criminal proceedings,
12
Q
What are the common law gateways to admit hearsay evidence under s118 CJA 2003?
A
- Hearsay is public information,
- Hearsay is included to show witness character,
- Hearsay is made res gestae,
- Hearsay is a confession (dealt with by s76 and s78 PACE),
- Hearsay is expert evidence.
13
Q
What are the gateways to admit hearsay evidence related to trial evidence?
A
- Hearsay conflicts with evidence given in court - s119,
- Hearsay is consistent with evidence given in court - s120,
- All parties agree to the hearsay being admitted.
14
Q
What is the definition of unfit to testify?
A
The witness is unfit to testify due to a bodily or mental condition.
Can be due to trauma such as a victim of sexual assault.
The court should consider adjournment for a time when the witness will be fit.
15
Q
How does the court consider whether a witness’s fear can allow hearsay evidence?
A
“Fear” is interpreted broadly – includes fear of harm, injury, or financial loss.
Must be a causal link between fear and non-attendance
Fear need not be caused by the defendant (cannot object if the fear is caused by them).
16
Q
What are the requirements to permit hearsay evidence from a business document?
A
- The information would be admissible if given orally; and
- It was made or received in the course of a trade, business, profession, occupation, or office (paid or unpaid); and
- The person who supplied the information had personal knowledge of the facts.
17
Q
When can the court permit hearsay evidence from documents prepared in criminal proceedings?
A
- The witness is unavailable under s116,
- The witness cannot remember due to a lapse in time.
18
Q
Under what factors can the court bar hearsay evidence from business documents based on their reliability?
A
- Its contents,
- The source of the information,
- How or in what circumstances the information was given or received, or
- How the document was created or obtained.
19
Q
What factors can the court consider when admitting hearsay evidence in the interests of justice gateway?
A
- The statement’s probative value in relation to the matter in issue;
- Availability of other evidence;
- The importance of the issue to which the hearsay evidence speaks;
- The circumstances in which the statement was made;
- The reliability of both the maker and the statement itself;
- Whether oral evidence could be given and why not;
- The difficulty of challenging the statement and the potential prejudice caused.
20
Q
What are the requirements for hearsay evidence to be res gestae?
A
- The statement is a spontaneous reaction, when overcome by emotion, leaving no chance of fabrication;
- Alongside an act that can only be understood properly as evidence with the statement; or
- In relation to a physical sensation or mental state (E.g. pain, fear, or intent).
21
Q
Why would the court permit hearsay evidence which is consistent with a witness’s testimony at trial?
A
Can be used to rebut an allegation:
- Of recent fabrication, or
- That the complaint has only been made recently.
22
Q
What are the 7 gateways to admit bad character evidence?
A
- The defendant agrees,
- The defendant introduces the evidence,
- It is important explanatory evidence,
- Previous convictions show propensity,
- An issue between a defendant and a co-defendant,
- Evidence rectified a false impression made by the defendant,
- The defendant has attacked another person’s character.
23
Q
What is the definition of important explanatory evidence?
A
Evidence is needed to properly understand the case:
- Without it, understanding other evidence would be impossible or difficult;
- Its value for understanding the whole case is substantial.
24
Q
What are the two types of propensity evidence admissible under statute?
A
- Propensity to commit offences of the kind charged;
- Propensity to be untruthful.
25
What are the statutory categories of general propensity evidence?
Previous convictions for the same offence;
Previous convictions for offences of the same category (sexual and theft offences).
Exception: propensity evidence can be excluded if it is too old or otherwise unjust to admit - s103(3).
26
When can evidence of propensity to be untruthful be admitted?
1. The defendant is on trial for an offence involving lying; or
2. The prosecution claims the defendant is lying about the facts of the case.
27
What are the statutory requirements to admit evidence of propensity to be untruthful?
1. The defendant previously lied under oath;
2. The defendant pleaded not guilty in a previous case and gave evidence that was disbelieved; or
3. The defendant previously committed an offence involving deception (e.g. fraud).
28
What are the requirements to admit propensity evidence under Hanson?
1. The defendant’s record shows a propensity to commit offences of the kind (broad) charged;
2. That propensity makes it more likely that the defendant committed this offence;
3. Relying on those convictions would not be unjust;
4. Admitting the evidence would not make the trial proceedings unfair.
29
What is the fairness test under s101(3), and which bad character gateways does it apply to?
Court must not admit propensity evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
30
What are the two main applications for the important matters between co-defendants' gateway, and what kind of evidence can be adduced through it?
1. Propensity to be untruthful evidence is used against a co-defendant who is arguing against the defendant;
2. Propensity to commit a similar offence, evidence can be admitted against a co-defendant who denies such propensity.
31
What is the definition of a false impression that can be corrected by bad character evidence?
A false impression arises where a statement or behaviour is likely to mislead the court about the defendant's character, made by:
1. Themselves (in court, in interview, on charge, etc.),
2. Their witnesses, or
3. Their questions in cross-examination.
32
What additional requirement is placed on evidence admitted to correct a false impression?
Evidence admitted must be necessary and relevant (go no further than necessary) to correct the false impression.
33
What is the definition of the defendant attacking another person's character?
It includes:
1. Adducing evidence criticising their character,
2. Ask questions in cross-examination intended (or likely) to bring out such criticism, or
3. Making imputations (e.g. during an interview or charge) that another has committed an offence or behaved reprehensibly.
“Other person” includes anyone, living or dead, whether or not they are a witness in the proceedings.
34
What is bad character evidence?
Evidence that a person has:
1. Has committed an offence, or
2. Has behaved (or tends to behave) in a reprehensible or blameworthy way.
35
What are the two limbs of the test to exclude evidence under s78 PACE?
1. The evidence was obtained unfairly or improperly, including breaches of PACE or its Codes of Practice;
2. The evidence results from a substantial breach of PACE, meaning its admission would undermine the fairness of the trial.
36
What are the likely breaches of PACE that will lead to evidence being excluded under s78 PACE?
A suspect was denied/ unlawfully delayed access to legal advice;
A suspect's right to have someone informed of their arrest was unlawfully delayed;
Waiver of legal advice was not voluntary or informed;
No caution was given before questioning;
No appropriate adult was provided for a youth or vulnerable person;
Identification procedures were not properly followed;
Evidence was obtained through a search without a warrant.
37
What must the court consider to determine if evidence resulting from a breach of PACE will undermine the fairness of the trial under s78 PACE?
Admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The key issue is the effect of the breach, not its seriousness.
38
What is the primary consideration when excluding evidence under s78 PACE?
The key issue is the effect of the breach not its seriousness.
39
What are the two possible limbs under which confessions can be excluded through s76 PACE?
1. It was elicited by oppression,
2. It was elicited by something said or done which renders it unreliable.
40
What is the test for whether a confession must be excluded due to oppression?
Oppression includes torture, inhuman/degrading treatment, use or threats of violence.
It must go beyond the reasonable force the police can use for the apprehension of a suspect.
41
Is the test for oppression under s76 PACE subjective or objective?
The standard of oppression is subjective to the defendant (lower standard for vulnerable defendants).
42
Who has the burden of proof for excluding a confession under s76 PACE?
The prosecution must prove beyond a reasonable doubt the confession was due to oppression or unreliability.
43
What is the primary consideration when excluding confessions for unreliability?
It is about the effect of the coercion on the reliability of the evidence, not the intensity of the coercion itself.
44
What are the steps in the R v Barry used for excluding confessions for unreliability?
1. Identify the “thing said or done”;
2. Ask if the act/omission was likely to make a confession unreliable;
3. Prosecution must prove beyond a reasonable doubt that the confession was still reliable.
45
What is classified as “things said or done” for exclusion of confessions for unreliability under s76 PACE?
This can include positive acts which breach obligations such as promises, inducements, or threats, as well as omissions to provide legal safeguards.
Will often be breaches of suspects' rights under PACE Code C (e.g. rights to legal advice, or an appropriate adult).
46
What is the test for “likely to make a confession unreliable” when excluding confessions for unreliability under s76 PACE?
Would a hypothetical accused with the same characteristics, and in the same circumstances, give an unreliable confession due to the things said or done.
47
Can you admit evidence which was discovered as the result of a confession excluded under s76 PACE?
Facts discovered as a result of a confession excluded under s76 remain admissible in the proceedings.
However, the prosecution cannot tell the jury that the facts were discovered due to a confession.
48
What are the two limbs for stopping a case under the Turnbull guidance?
1. The identification evidence is weak,
2. The ID is the the whole or the substantial part of the evidence.
49
What is the mnemonic used when assessing visual identification evidence under Turnbull?
ADVOKATE
50
What does the ADVOKATE mnemonic stand for when assessing visual identification evidence?
A - Amount of Time
D - Distance
V - Visibility
K - Known to the witness
A - Any reason to remember
T - Time lapse
E - Error or material discrepancy
51
What is a Newton Hearing?
A hearing to determine whose account of the facts is right when the defendant pleads guilty.
52
What are the steps that must be met before a Newton Hearing is held?
1. The defendant pleads guilty but does not agree with the Crown's version of events,
2. The basis of the defendant's guilty plea is not absurd,
3. The different accounts of the facts will make a material difference to the sentence.
53
What are the steps the court take when determining the appropriate sentence?
1. Assess seriousness to categorise,
2. Identify aggravating/mitigating factors.
4. Consider assistance to prosecution and guilty plea reductions.
5. Apply totality principle.
6. Ensure the final sentence is just and proportionate.
54
What are the two limbs for assessing the seriousness of an offence?
1. Culpability: Level of blame on the defendant.
2. Harm: Level harm inflicted on the victim. Also includes any harm intended or which might foreseeably have been inflicted.
55
What are the three categories of seriousness, and what is the effect of the classification?
Category 1: Greater culpability + greater harm
Category 2: Mixed
Category 3: Lesser culpability + lesser harm
56
What are the common aggravating factors for sentencing offences?
1. previous convictions,
2. offending while on bail,
3. being motivated by hate,
4. being intoxicated,
5. professional criminal,
6. use of a weapon,
7. abuse of trust,
8. targeting vulnerable victims,
9. concealing evidence.
57
What are the common mitigating factors for sentencing offences?
1. significant provocation,
2. mental illness or reduced responsibility,
3. youth or old age affecting responsibility,
4. good character or no prior convictions,
5. personal mitigation such as remorse or hardship.
58
What credit is given to defendants who plead guilty in the different stages of trial?
At first stage of proceedings – up to one-third (⅓) reduction.
After first stage but before trial – up to one-quarter (¼).
On the day of trial – up to one-tenth (1/10) (on a sliding scale).
59
What is the totality principle in sentencing?
When sentencing for multiple offences, the court must ensure the total sentence is just and proportionate.
Where the multiple offences arise from the same facts/incident, the court generally applies the sentences concurrently; otherwise, they apply consecutively.
60
What evidence must the prosecution disclose to the defence?
Any material that might reasonably:
1. Undermine the prosecution’s case, or
2. Assist the defence’s case, or
3. Provide a written statement confirming no such material exists.
61
What is the Attorney General's guidance on what evidence the prosecution must disclose to the defence?
Prosecution should include material which could:
1. Be useful in cross-examination;
2. Support applications to exclude evidence, stay proceedings, or show ECHR breaches;
3. Explain or partly explain the accused’s actions;
4. Affect scientific or medical evidence, including mental or physical health or ill-treatment claims
62
When must the prosecution review what evidence they have disclosed under the continuing disclosure duty?
When they receive the defence statement,
If there are any case developments.
63
What are the conditions for an application for specific disclosure to be made?
Defence statement must have been served;
Prosecution must have either made further disclosure or indicated none is necessary.
64
What are the outcomes of the prosecution failing to meet their disclosure duty?
1. Defence appealing to stay the case due to abuse of process;
2. Conviction being be quashed on appeal;
3. Court making orders for wasted costs, or refusing to extend custody time limits;
4. Court excluding evidence for unfairness.
65
If the defendant pleads not guilty to an either-way offence, what must the court determine at the first hearing?
Whether to retain jurisdiction or to send the case to the Crown Court for trial.
66
What are the two reasons a magistrates' court might send an either-way offence to the crown court at the first hearing?
1. The sentence is likely to exceed the maximum sentencing powers of the magistrates (12 months' custody), or
2. The case is too complex to be heard in the magistrates’ court.
67
What are the maximum sentencing powers of the magistrates’ court?
A custodial sentence of 12 months.
68
What is the test for the court to issue a witness summons?
1. The witness is likely to be able to give evidence that is likely to be material, or to produce a material document, and
2. It is in the interests of justice to issue a summons.
69
When can an application for dismissal be made?
1. After D is sent by mags court for trial at CC
2. After D had been served with the evidence relating to the offence
3. Before D is arraigned
70
What is the test for an application for dismissal?
Court will grant the application if it appears that the evidence against the applicant would not be sufficient for him to be properly convicted.
71
What is an abuse of process application?
An defence application to stay proceedings due to an issue of unfairness or impropriety so fundamental that they go to the heart of whether or not a case should continue.
72
What is the test for the court to grant an abuse of process application?
The issue of unfairness goes to the heart of whether a case can continue :
1. Where the accused can no longer receive a fair hearing,
2. Where continuing would undermine the fairness and integrity of the criminal justice system.
73
What are the examples where an abuse of process application should be granted.
1. where D has been tricked or coerced into committing an offence
2. where D is prosecuted despite an unequivocal promise by the prosecution that they would not
3. where police have deliberately destroying evidence or acted in breach of duties
4. where the prosecution has misused the process of court to deprive D of legal protections
74
Who must prove what in a Newton Hearing?
The prosecution must prove its version of events beyond a reasonable doubt:
● If they have: D will be sentenced on the prosecution version of facts
● If they have not: D will be sentenced on the defence version of facts
75
If the court find for the prosecution in a Newton hearing, how does this affect the defendants guilty plea credit?
The credit/reduction in sentence which the defendant would have received is reduced (normally halved).
76
What are two instances in which how the defendant was held before sentencing can reduce their sentence?
Time remanded in custody before sentencing is automatically deducted from the sentence,
Time spent on bail with a curfew of at least 9 hours per day with electronic monitors may be deducted from a sentence at 50%.
77
When should a juvenile defendant being sent to the crown court to trial/sentence?
1. The offence is capable of being a grave crime (max sentence for an adult is over 14 years);
2. The appropriate sentence has a real prospect of exceeding the youth court’s powers (two years DTO).
78
What offences are capable of being a grave crime?
1. Homicide offences,
2. s18 GBH,
3. Robbery,
4. Burglary of a dwelling,
5. Aggravated burglary,
6. Aggravated criminal damage,
7. Arson.
79
How does the court consider multiple offences when deciding to send a youth to the crown court?
Where a youth is charged with multiple offences, one or some of which are grave crimes, the court can consider the combined seriousness of all the offences when determining whether to send to CC.
80
What is the rule when a youth is charged with an adult who will be tried in the crown court?
Where a youth is charged jointly with an adult, and the adult is sent or elects a crown court trial, the court will send the youth to the crown court as well if it is in the interests of justice, otherwise they should be tried in the youth court.
81
What factors does the court consider when deciding whether it is in the interests of justice for a youth to be tried with an adult in the Crown Court?
1. Whether separate trials would cause injustice to witnesses or the case as a whole,
2. The age of the child,
3. The age gap between the youth and the adult,
4. The relative culpability of the youth,
5. Any previous findings of guilt for the youth.
82
When must a judge give a Turnbull direction?
Where there is identification evidence which is the whole or the substantial part of the evidence (irrespective of the quality).
83
What are the gateways for admitting bad character evidence of a non-defendant?
The court may admit bad character evidence of a non-defendant if:
1. Is it agreed by the parties,
2. It has substantial probative value in relation to a matter in issue (e.g. credibility), or
3. if it is important explanatory evidence.
84
What must the court find to overturn a decision (conviction or sentence) on appeal?
Once permission has been granted, the court must consider the actual appeal must be considered, and the court will act if:
1. Conviction: the conviction is unsafe.
2. Sentence: the defendant should have been sentenced differently.
85
What is the difference between excluding propensity evidence under s101(3) CJA vs s78 PACE?
Under s101(3), the court must not admit propensity evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Under s78 the court may exclude such evidence.
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