Essentials Flashcards

Question

What does it mean that a solicitor is an ‘officer of the court’?

Answer 1

Overriding duty under s.50(1) Solicitors Act 1974. Must uphold the rule of law and proper administration of justice. Duty can sometimes conflict with Principle 7 (best interests of the client). ## Footnote Must not mislead court !! Must stop acting if client insists on misleading court.

Answer 2

Yes. Pleading not guilty is their right in an adversarial system. It is the prosecution’s job to prove guilt, not the defendant’s to prove innocence.

Answer 3

The solicitor must not put forward false evidence. Advising or acting to suggest the client did not commit the offence would mislead the court. (Can just wait and sit back to see if prosecutor manages to prove all elements of the crime though.)

Answer 4

Suggesting a prosecution witness is mistaken when they clearly are not. Acting in any way to claim the client didn’t commit the crime.

Answer 5

The public interest in the administration of justice governs, but confidentiality cannot be breached.

Answer 6

Needs sufficient evidence (ie believe that there is sufficient evidence to provide a realistic prospect of the defendant's conviction.) Slightly higher threshold than arrest. Contents of interview at police station will be considered here (since interview is under caution, it is admissable as evidence)

Answer 7

Allocation guideline says that either-way offences should be tried summarily unless the outcome would clearly be a sentence in excess of the magistrates' courts' powers OR where case is unusually complex. Magistrates can also take into account when deciding : past convictions, potential personal mitigations, potential reduction for guilty plea.

Answer 8

One or more summary offence: max 6 month's imprisonment Either-way offences: max 12 months

Answer 9

Only if they plead not guilty and the magistrates decide the case is suitable for summary trial. Then, the defendant can accept trial in the Magistrates’ Court or instead elect for jury trial in the Crown Court. If however magistrates decide it’s too serious, it must go to the Crown Court (no choice).

Answer 10

Court explains this to D. D may request a sentence indication (s.20–20A MCA): court can only say if sentence likely custodial or non-custodial. If D then pleads guilty → court is bound to that type of sentence. If D keeps not guilty → indication not binding later. D is then asked if they consent to summary trial. If yes → trial in Magistrates’ Court. If no → case sent to Crown Court (s.51 CDA). ## Footnote (This all happens in plea before venue hearing.)

Answer 11

Case sent to Crown Court under s.51(1) CDA. No choice for the defendant. D will attend a Plea and Trial Preparation Hearing (PTPH) at Crown Court (usually within 28 days), where the indictment is drafted. Representation can be by barristers or solicitors with Higher Rights of Audience.

Answer 12

Through the Defence Solicitor Call Centre (DSCC), but limited to telephone-only advice for non-imprisonable offences.

Answer 13

‘Solicitor’ in this Code means: a solicitor who holds a current practising certificate; an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

Answer 14

Defendants under 18, and defendants on specified welfare benefits (e.g., Universal Credit or income-based Jobseeker’s Allowance).

Answer 15

The Financial Statement for Legal Aid in Criminal Proceedings (CRM15).

Answer 16

Step 1: Calculate **weighted gross annual income** (includes partner unless conflict). * Below £12,475 → eligible for public funding. * Above £22,325 → ineligible. * Between £12,475–£22,325 → full means test (CRM15) to assess **annual household disposable income**: ≤ £3,398 disposable income → eligible for funding. Reviews: * Eligibility review (if failed means test). * Hardship review (if high outgoings or unusual costs). ## Footnote (no possibility of contribution)

Answer 17

**Assess income + capital** (including property equity). * First £30,000 capital/equity ignored; any balance may go to defence costs. **Disposable income thresholds**: * ≤ £3,398 → eligible, no contribution. * £3,399–£37,499.99 → eligible, must contribute (90% of disposable income for up to 6 months). * ≥ £37,500 → ineligible. Contributions may come from income (during case) or capital (after case); refunded with interest if acquitted. Reviews: * Eligibility review (if funding refused). * Hardship review (if contribution required or financial situation changes).

Answer 18

Defendant must complete Form CRM14 to show it’s in the interests of justice for them to have legal representation. Automatic pass if: * Charged with an indictable-only offence; or * An either-way offence sent to the Crown Court. Otherwise, must satisfy one or more of the 10 propositions, showing the case is serious or complex enough that self-representation wouldn’t be fair or practical: 1. Likely to lose liberty (custodial sentence real and practical possibility). 2. Breach of suspended/non-custodial sentence could reactivate earlier offence. 3. Likely to lose livelihood. 4. Likely to suffer serious damage to reputation. 5. Substantial question of law involved (e.g. admissibility, PACE breach). 6. Cannot understand proceedings or present own case (language, youth, mental health). 7. Witnesses need tracing/interviewing on defendant’s behalf. 8. Case involves expert cross-examination of prosecution witness. 9. In interests of another person that defendant is represented (e.g. vulnerable victim). 10. Any other reasons (e.g. not guilty plea, vulnerable witnesses, case complexity).

Answer 19

After arrest suspect needs to be taken to police station as soon as is practicable. Person can be taken to any police station, but if anticipated to stay there more than 6 hours, has to be to a designated police station.

Answer 20

Exceptions where presence is necessary to carry out investigations that are reasonable to be carried out immediately, such as: - being searched; - being taken to premises to be searched; - taken to place to check alibi

Answer 21

- Detainee sees custody officer (as soon as possible) who must authorise continued detention - detainee informed of rights - detainee will have certain non-intimate samples taken - may see appropriate healthcare professional if necessary - can request solicitor - has interview (often with solicitor present)

Answer 22

Is responsible for handling and welfare of suspects in detention, ensuring they are treated according to code of practice. Procedure that is to be followed is governed byPACE, and Code of Practice. Very vital role !! They know that if there is any issue with procedure, evidence may be excluded and they could be held accountable.

Answer 23

3 possible scenarios: (1) Can be released under investigation or on police bail (2) charged and released on police bail to appear at magistrates' court at later date, (3) charged and remanded in police custody to appear at magistrates' court on the following day

Answer 24

Must be police officer of the rank of at least 'sergeant'. & Must be unrelated to process of the investigation of the offence. ## Footnote If not available, role may be performed by another officer, though that officer must normally not be involved in the investigation of an offence for which person is in detention.

Answer 25

WIll open custody record and determine whether there is sufficient evidence for person to be detained. If not, must be released (unless reasonable grounds for believing detention is nevertheless necessary to (1) secure / preserve evidence, or (2) obtain evidence in questioning.) If yes, has to: - authorise detention, - inform detainee of reason for arrest and detention - advise them on their rights.

Answer 26

Separate custody record must be opened each time detainee comes to police station (whether arrested and brought to police station, arrested at police station, surrenders, surrenders to bail at police station.) Basic info that must be included: - requirement to inform person of reason they are arrested - circumstances of arrest - why arrest was necessary - any comments made by arrested person

Answer 27

Must be carried out during detention of suspect Must remind person of right to free legal advice, and given rights to representation (unless unfit / asleep.) Review officer must be satisfied that detention still necessary and that grounds for detention as authorised by custody officer still exist. TIMING: - First review must occur not more than 6 hours after custody officer first authorises detention - After first review, every 9 hours after. ## Footnote Review officer: needs to be at least rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

Answer 28

Max period that suspect can be kept in custody is 24 hours from '**relevant time**'. SO before these 24 hours, must either be charged or released. * The relevant time = time that the person arrested first **arrives at police station** OR 24 hours after arrest - whichever is sooner (latter is never the case). Its indicated on custody record. (Is not the same as the time detention is authorised!) ## Footnote (So while timing for reviews start from when detention is AUTHORISED, time limit for detention as a whole is from when ARRIVES at police station)

Answer 29

P : power to detain for more than 24 hours A: PACE says can be extended for additional **12 hours** (so here max detention period becomes 36 hours from relevant time.) C: **criteria** : * officer of at least rank of superintendent must authorise, * needs reasonable grounds for believing extended detention is necessary to secure/preserve evidence, or obtain it by questioning, * offence must be INDICTABLE offence (so either way), and * investigation must be conducted diligently and expeditiously. E: exercise - authorisation to extend must be given **before expiry of first 24 hour window but after second review**, grounds for extension must be explain to suspect and noted in custody record, and suspect or their solicitor must be allowed to make representations.

Answer 30

If police wants to detain for longer, must **apply to magistrates' court** for a warrant of further detention (**max 96 hours total**). This warrant may authorise continued detention for a **further 36 hours on a first application**, and then **max of 96 hours altogether on a second application**. Again, here Magistrates court have to be satisfied that there are reasonable grounds for believing necessary for evidence, offence must be indictable, and investigation being conducted diligently and expeditiously.

Answer 31

1) Right to consult privately with a solicitor (free legal advice available). 2) Right to have someone informed of their arrest. 3) Right to consult the Codes of Practice (COP). ## Footnote + might have right to an appropriate adult (for juveniles or vulnerable persons) and/or an interpreter

Answer 32

Before: * An interview (start or restart), * Giving an intimate sample, * An intimate drug search, * An ID parade or video identification.

Answer 33

* Advice must be provided as soon as practicable; * interviews should wait for the solicitor; * suspects must not be discouraged from seeking advice. ## Footnote If detainee first refuses, then later asks for it: The interview must stop until the detainee has exercised their right to legal advice.

Answer 34

Only if: * Detainee held for an indictable offence, * Written authority by a **superintendent**, * Reasonable grounds that exercising the right may lead to evidence interference, harm to others, alerting suspects, or hindering recovery of property. * Can only be delayed for maximum of 36 hours ! Pretty rare - could be potentially if solicitor is actually named, but if just a general one, very unlikely (because this delay is only when scared solicitor will pass on information.)

Answer 35

If: * Detainee held for indictable offence, * Written authority from an **inspector**, * Reasonable grounds it would cause evidence interference, harm to others, alert suspects, or hinder recovery of property. (Here more common, tipping off fear. However, nevertheless, has to be proportionate and cannot be delayed for more than 36 hours.)

Answer 36

Anyone under 18, or suspected/known to be mentally disordered or vulnerable. * Their role: ensure understanding, support the detainee, monitor fairness, aid communication, and protect rights.

Answer 37

**Juvenile:** * Parent, guardian, care authority representative, social worker, or another adult (not police staff). **Mentally vulnerable:** * Parent, guardian, relative, or experienced adult (not police staff). ## Footnote (Note have exceptions !! )

Answer 38

* A solicitor for the suspect. * Anyone under 18. * A police officer or employee. * Anyone involved in the case (suspect, victim, witness, investigator). * Anyone who has already received admissions/confessions (before being appointed appropriate adult.) * Someone with low IQ who cannot grasp the situation. * An estranged parent the youth objects to.

Answer 39

Only if delay risks: * evidence interference, * harm to people, * serious property loss/damage, * alerting suspects, or * hindering recovery of property.

Answer 40

If required, no interview may occur without an interpreter unless a superintendent authorises it to prevent serious risks (e.g., evidence interference or harm).

Answer 41

The questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences.

Answer 42

(From lowest to highest) 1) Constable 2) Sergeant 3) Inspector 4) Chief inspector 5) Superintendent 6) Chief superintendent ## Footnote Trick : CSI Starhollow

Answer 43

Can be police officer of any rank. Usually police officer in charge of investigating that particular offence (also referred to as officer in this case.) Would be the officer that the suspect's legal rep would speak to obtain pre-interview disclosure. Will most likely lead the interview

Answer 44

Before the interview, the solicitor must be given sufficient information to allow them to understand the nature of of the offence their client is suspected of committing and why their client is suspected of committing it. Must also be told of any '**significant statement**'. However, beyond above, there is no general 'right to disclosure'. ## Footnote Significant statement = A significant statement is one that appears to be capable of being used in evidence, and in particular any direct admission of guilt (ie a confession) must be disclosed at the start of the interview.

Answer 45

Generally shouldn't be interviewed where they are unable to: - appreciate the significance of the questions asked and their answers; or - understand what is happening because of the effects of drink, drugs or any illness, ailment or condition HOWEVER: here an officer of rank of **superintendent** can authorise an interview in these circumstances.

Answer 46

Must be: 1. at police station 2. cautioned 3. recorded 4. reminded of right to legal advice before (and have solicitor present if said yes) ## Footnote 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.'

Answer 47

Should be interviewed at police station or other authorised place of detention. There are exceptions to above, where delay would be likely to: - lead to interference/ harm with evidence, or to other people or to serious loss/damage to property, lead to tipping off to other people involved in offence not yet arrested, hinder recovery of property obtained in consequence of commission of an offence.

Answer 48

At the start of detention, the custody officer does a risk assessment. If the suspect is (or might be) vulnerable, they must be given access to an appropriate adult, who should be informed of the grounds for detention and attend the station as soon as possible. (If suspected to be vulnerable, should be treated as such until clear evidence shows otherwise - should make reasonable enquiries.) ## Footnote Vulnerable person = if, due to a mental health condition or disorder, they may have difficulty understanding or communicating the implications of police procedures (arrest, detention, voluntary interview, or rights). Signs of vulnerability include: * Not understanding the significance of what is said or asked. * Becoming confused about their position. * Giving unreliable or incriminating information unknowingly. * Accepting or agreeing to suggestions without real awareness.

Answer 49

Generally no, but an urgent interview is allowed if authorised by a **superintendent** (or above) and delay risks: * Interfering with/harming evidence. * Harm to others. * Serious loss/damage to property. * Alerting other suspects. * Hindering recovery of stolen property. The interview must stop once enough information is obtained, and reasons must be recorded

Answer 50

1. Answer questions. 2. Go “no comment.” 3. Provide a written statement then “no comment.” ## Footnote Note possibility of adverse inferences if stay silent / don't comment on certain things.

Answer 51

* Amount of disclosure from police. * Admissibility and strength of evidence. * Client’s account and instructions. * Client’s state (fitness, Argent factors). * Any significant statements. * Possible adverse inferences.

Answer 52

Reasons why silence may not attract adverse inferences: * suspect unfit for interview due to ill health, * confusion, * intoxication, or * shock (R v Argent [1997]). (This caselaw says courts must not draw adverse inferences if above factors were involved.) Solicitor must check custody record + medical fitness for interview.

Answer 53

Criminal Justice and Public Order Act 1994: * s.34: Failing to mention a fact later relied on at trial. * s.36: Failure to account for marks, objects, substances. (careful consideration of custody record important here to avoid ambush in interview) * s.37: Failure to account for presence at the scene. (However s38 provides safeguard that no D can be convicted solely based on an adverse inference.)

Answer 54

* **Caution**: defendant must have been cautioned: “You do not have to say anything, but it may harm your defence if you do not mention something later relied on in court.” * Fact must have been **reasonable to mention at the time**, bearing in mind 'all circumstances existing at the time'. (For circumstances existing at time, jury can consider: (i) disclosure given to suspect, (ii) what suspect knew at time, (iii) suspect's condition, legal advice received.) * Also need to have the suspect actually rely on fact so that requires **giving evidence at trial** - if don't give evidence, doesn't arise. ## Footnote So here only arises if relies on fact later at trial.

Answer 55

* Arise immediately when suspect fails to account for object/mark, or presence. * Do not require a later fact relied upon: so these are triggered by trial – once there is a trial, immediately triggered, doesn’t matter if actually give evidence or not ! * Require a ‘special warning’ rather than caution: (i) offence, (ii) fact in question being asked to account for, (iii) maybe due to possible commission of offence, (iv) potential inference if they refuse to account for it, (v) record of interview being made that will be released in trial.

Answer 56

* s.38: Cannot convict solely on adverse inference. * No inference if suspect lacks access to legal advice. * No inference if case does not go to trial or suspect pleads guilty.

Answer 57

Only if the case goes to trial and the suspect has exercised the right to silence. Irrelevant if: * Case never reaches trial. * Client pleads guilty.

Answer 58

An eye-witness claims to recognise the suspect as someone they know, or gives a description and expresses an ability to recognise them again. ## Footnote Does NOT count as visual ID evidence: * A mere description of clothing or vehicle. * Knowledge of suspect’s presence at a place. * Physical description alone (e.g. height, hair colour).

Answer 59

When: 1. An offence has been witnessed and an eye-witness has identified/purported to identify a suspect; OR 2. An eye-witness expresses an ability to identify the suspect; OR 3. An eye-witness has a reasonable chance of being able to identify. AND the suspect disputes being the person seen. ## Footnote Not required If impracticable or of no use (e.g. suspect is already known to the eye-witness).

Answer 60

1. Video identification (VIPER) 2. Identification parade 3. Group identification 4. Confrontation by an eye-witness ## Footnote VIPER really the most practical / efficient one (first option they go for always)

Answer 61

* Record first description given by the eye-witness. * Provide copy of record to suspect/solicitor. * Give suspect notice of: (i) purpose, (ii) right to free legal advice, (iii) right to solicitor/friend present, (iv) that they need not co-operate, and (v) that refusal may be used in evidence.

Answer 62

Video Identification Parade Electronic Recording – a video showing the suspect among at least 8 lookalikes. Usually the one at first instance suspect is invited to participate in (unless would not be practicable, or identification parade would be more suitable.) ## Footnote If have special features -- either conceal the feature on all participants, or replicate it on others.

Answer 63

* If suspect has reasonable objection to any images in set, will be asked to state reason for objection. * Witness is told suspect may or may not be present. * Solicitor/suspect/friend must be given 'reasonable opportunity' to see complete set of images before shown to any eye-witness. * Entire procedure must be video-recorded with sound, and must also show/include: anyone in eye vision of witness, what the identification officer says to eye witness before and after, what eye witness says.

Answer 64

Witness sees suspect among people in a natural setting (e.g. shopping centre, train station). Can also be covertly done - though video / photography of this being done should be taken (if practicable.)

Answer 65

Defendant may apply to exclude evidence under s 78 PACE 1984. However, a breach does not automatically exclude evidence: the judge decides if the breach causes significant prejudice, and this prejudice would cause such adverse effect that would undermines fairness of proceedings. If admitted despite a breach, at trial: - Defence may comment on breach. - Judge must draw jury’s attention to it. - Jury must consider whether the breach undermines safety of the identification.

Answer 66

An officer of at least inspector rank, not involved in the investigation — known as the identification officer.

Answer 67

May only be present at video ID on request, and with prior agreement of identification officer.

Answer 68

Generally, Crown Prosecutors, exercising the powers of the Director of Public Prosecutions (DPP). However, police can make charging decisions for certain summary offences (e.g. some road traffic offences, s.5 Public Order Act 1986, criminal damage under £5,000, low-value shoplifting). The decision is made by the custody officer.

Answer 69

* Written charge and requisition: a relevant prosecutor issues a written charge and requisition requiring attendance at magistrates’ court. No arrest is required. * Laying an information: a prosecutor serves an information alleging an offence on a magistrates’ court, which issues a summons or arrest warrant. (Used for private prosecutions.)

Answer 70

Proceedings must be commenced within six months of the alleged offence. ## Footnote (Burden is on prosecution if there is dispute about timings.)

Answer 71

No. There is no statutory limit on bringing indictable charges.

Answer 72

Within 14 days – if a guilty plea is anticipated likely to be suitable for magistrates’ sentencing. Within 28 days – if a not guilty plea is likely, or the case likely to go to Crown Court (for trial or sentence)

Answer 73

At the next available court sitting.

Answer 74

Only in limited cases (e.g., minor/summons cases). Not possible where allocation of either-way offences or sending indictable cases is involved. ## Footnote Summonsed = typically used for non-imprisonable, minor or road traffic offences

Answer 75

Material the prosecution must serve before the first hearing. (purpose is to allow court to form informed view on plea & trial venue, etc.) In standard cases, must include: * Circumstances of offence. * Defendant’s interview account. * Written statements/exhibits relevant to plea/trial/sentence. * Victim impact statements. * Defendant’s criminal record. **HOWEVER** ! Where was in police custody before first hearing, only needs: * circumstances of the offence * D's criminal record

Answer 76

Magistrates’ court only deals with bail & legal aid. D indicates plea on sending form (because can get discount for early plea.) Technically however magistrates' don't have jurisdiction to take in plea. Case is then sent to Crown Court for plea and trial.

Answer 77

If it is linked to an indictable offence and falls under special rules. If is one of the following, MUST be sent to CC for trial and sentencing (tho sentencing limitation as to what magistrates could do): * Common assault. * Assaulting prison/secure training officer. * Taking a vehicle without authority. * Driving while disqualified. * Criminal damage. ## Footnote (Some summary only offences are sent for 'plea only' with an indictable offence - those which are not listed above, but punishable by driving disqualification or imprisonment. If after this, pleads guilty - CC can sentence. If pleads not guilty -- sent back to magistrates for trial.)

Answer 78

D is asked to indicate plea before allocation for either way offences. Can either plead guilty, not guilty, or give no indication (which is treated as not guilty.) * Before D pleads guilty - should be given warning that they may be sentenced in magistrates' court or committed to CC if sentencing powers insufficient. * If pleads not guilty - have allocation hearing. ## Footnote Not equivocal guilty pleas - treated as not guilty.

Answer 79

Cases should generally be tried summarily unless: * Likely sentence > magistrates’ powers; OR * Case has unusual legal/procedural/factual complexity. (If have either of this, MUST be sent to Crown Court - this is the test, Magistrates' don't have discretion here.) ## Footnote Here, prosecution and defence roles: * Prosecution: outline facts, history, aggravating/mitigating features, argue venue. * Defence: can agree or argue for magistrates (if P saying should be CC)

Answer 80

* Higher acquittal rate. * Judge/jury split → voir dire exclusion arguments. * Not always harsher sentencing.

Answer 81

* Quicker, less formal, cheaper. * No defence statement required. * Magistrates give reasons; jury does not. * Magistrates’ sentencing powers more limited (but can still commit for sentence).

Answer 82

D may ask court to say if sentence would be custodial or non-custodial if guilty plea entered. (Basically to check whether they should change to a guilty plea.) Binding? * If court indicates non-custodial, and D changes to guilty plea subsequently, then that is binding on later magistrates’ courts. * Otherwise not binding (eg indicates but D sticks with not guilty plea.)

Answer 83

Cases involving: - Complex fraud - Child witnesses ## Footnote Case has complex fraud if has at least two of following: * amount alleged to be over £500,000. * International element. * Specialist financial/regulatory knowledge needed. * Numerous victims. * Significant fraud on public body. * National concern/economic risk.

Answer 84

* Committed for sentence after guilty plea/trial. * Sent for trial if magistrates decline jurisdiction. * Sent if D elects jury trial. * Sent if complex fraud/child witness case.

Answer 85

* Bail = The release of a person subject to a duty to surrender to custody at an appointed time and place. * Adjournment = When the case is postponed to another date (not about the defendant). * Remand = When the defendant is told to return another day, either on bail or in custody. Applied for by prosecution (objecting to bail), because of presumption in favour of bail.

Answer 86

Courts must presume entitlement to bail unless an objection is made out. Still exists post-conviction, where case adjourned for sentencing reports, or breach of community order. However !! Does not apply when: * appeals against conviction / sentence * committals for sentence from magistrates to CC ## Footnote Where there is no right to bail above - not that cannot get bail, just that presumption does not apply.

Answer 87

Substantial grounds for believing D will: (1) Fail to surrender. (2) Commit further offences. (3) Interfere with witnesses/obstruct justice. (However, if 'no real prospects' of custodial sentence - bail should not be refused on these grounds.) | (Note also have additional grounds) ## Footnote Threshold here is : “Substantial grounds for believing” → a real and genuine basis, not just suspicion. However, not very high threshold. Not that have to show 'is more likely than not'. Just necessary to show that the fears of behaviour happening have merit and substance.

Answer 88

Not initially, unless: * D has prior “fail to surrender”. * D breaches bail and is arrested under s 7. ## Footnote It is narrower here to avoid holding defendants in custody longer than any eventual sentence.

Answer 89

Bail “need not” be granted if: (a) For D’s own protection. (b) Insufficient information to decide. (c) Already serving a custodial sentence.

Answer 90

Bail may be refused if substantial grounds exist that D would cause mental/physical injury to an associated person (partner/family).

Answer 91

* For murder: only a Crown Court judge can grant bail (still occurs at first hearing.) * For murder, attempted murder, rape, serious sexual offence or manslaughter: if D has a prior conviction for one of these already → bail only to be granted in exceptional circumstances. * For offences carrying life imprisonment → bail only if no significant risk of absconding or further offences, especially if already on bail or has failed to attend. * Otherwise → bail only if no significant risk of serious harm. ## Footnote (Don't need CC judge for attempted murder.)

Answer 92

If : 1) D tested positive for Class A drug, and 2) The offence relates to, or was motivated by, Class A drug use, Bail may be refused unless there is no significant risk of reoffending.

Answer 93

For indictable offence → bail “need not” be granted. For summary imprisonable → bail “need not” be granted if substantial risk of further offences.

Answer 94

Para 9 FACTORS: 1) Nature and seriousness of the offence, and likely disposal. 2) Defendant’s character, antecedents, associations, community ties. 3) Bail record (esp. past failures to surrender). 4) Strength of the evidence. ## Footnote Grounds = legal basis to refuse bail. Factors = evidence supporting whether a ground is made out.

Answer 95

1) Presumption in favour of bail (s 4). 2) Prosecution must object on a valid ground. 3) Court assesses if ground made out (using factors). 4) If concerns can be managed, impose conditional bail. 5) If not, remand in custody.

Answer 96

They must be relevant, proportionate, and enforceable. No limit on type of bail condition court can impose - statute just says 'such conditions as appear necessary' Eg of conditions: * residence condition (easier to locate, decreases risk of absconding) * curfew (reduces risk of re-offending, only appropriate for night time offences like burglary) * reporting to police station (check D is still local, reduce absconding risk) * surety (3rd party promises to pay money if D absconds - cannot be D) * Security (Money / valuables deposited by D or 3rd party, forfeited if absconds) * restrictions on residence / movement or contact (prevents further offending or witness interference) * electronic monitoring (risk of absconding / interference) * bail hostel (live there, imposes its own rules need to follow - eg no alcohol on premises - hostel often used when don't have fixed address.) * surrendering passport

Answer 97

Breach of bail conditions - not an offence itself, police may arrest you and remove bail (can also arrest you if about to breach bail conditions.) However, if fail to (without reasonable cause) surrender to custody, is criminal offence! Consequences: * Up to 3 months’ imprisonment and/or unlimited fine summarily; * Up to 12 months and/or unlimited fine on indictment.

Answer 98

* First appearance: apply for bail. * If refused → second application a week later (can repeat same or raise new grounds). * If refused again → can appeal to Crown Court (with certificate of full argument), here CC would have to hear it within one business day of notice of appeal. * If refused again, can only reapply to magistrates court if 'change of circumstances'

Answer 99

Yes, if urgent, will still need a certificate of full argument. Means that loses chance to reapply in magistrates' court tho.

Answer 100

Rarely — but possible if: - Prosecution opposed bail originally; - Offence is imprisonable; - Prosecution indicates intention orally at hearing; - Confirms in writing within 2 hours. Appeal would be heard by CC (if granted by magistrates) and by High Court (if granted by CC) ## Footnote How quickly would have to be heard? Within 48 hours (excluding weekends.)

Answer 101

56 days from first appearance (trial must start within this time period) (unless prosecution successfully applies for time extension) ## Footnote Note: time starts when prosecution evidence begins.

Answer 102

182 days, less any days spent in custody prior to the case being sent to the Crown Court (usually 0) (unless prosecution successfully applies for time extension) ## Footnote Note: time starts when jury is sworn in.

Answer 103

D must be released unless prosecution obtains an extension (showing “all due diligence and expedition” and “good and sufficient cause”).

Answer 104

* If D is remanded at first hearing in magistrates’ court, second appearance must be within **8 clear days** (in person or by video link.) * After second appearance, D must be remanded every 28 days (can be in D's absence if consent is given)

Answer 105

* A solicitor can only be excluded from an interview if they are **preventing or obstructing questions being put to their client** * Asking for the interview to be paused to take instructions on new evidence is appropriate and correct. * It does not matter whether the interviewing officer is a superintendent — only a superintendent can authorise exclusion, not carry it out themselves. * A solicitor cannot be excluded simply for advising their client to give “no comment” answers. * The police cannot replace the solicitor just because they dislike their advice; a new solicitor is only arranged if the first has been formally excluded.

Answer 106

PET form (magistrates’ court) or PTPH form (Crown Court). ## Footnote Note: PET form used for case management in M's court.

Answer 107

Within **28 days** after being sent to CC. ('sent' involves a 'sending sheet' which is a notice by magistrates to crown court specifying the offence etc)

Answer 108

50 days if in custody; 70 days if on bail. (Is uploaded to Crown Court Digital Case system)

Answer 109

Within 20 business days after serving prosecution evidence.

Answer 110

Jury trial on actus reus only (so not on mens rea) → possible orders: absolute discharge, supervision, or hospital order. (custodial sentence not available)

Answer 111

The Plea and Trial Preparation Hearing (PTPH). Has to happen in CC cases. Has 2 stages: 1. Plea stage (arraignment), and 2. Either sentencing or trial preparation.

Answer 112

- trial date (if not already set) - prosecution evidence (has to confirm whether all served or still to come) - expert evidence (directions for service, etc) - witness requirements (defence needs to say whether want to call on any prosecution witnesses, whether intending to call any of their own defence witnesses) ## Footnote By the end of PTPH, parties should know : the trial date, preparatory timetable, and whether another hearing is required.

Answer 113

The process where the prosecution reveals evidence (used and unused) from an investigation that is relevant to the case. * Used = evidence the prosecution relies upon at trial, such as witness statements, defendant’s interview record, and documentary exhibits. * Unused = material not relied upon at trial, such as witness statements not used, records of prosecution witnesses’ previous convictions, or disciplinary findings against police officers.

Answer 114

To record and retain all material that may be relevant to the investigation, in a durable or retrievable form. How long? * Until decision whether to prosecute. * If proceedings start: until acquittal, conviction, or discontinuance. * If convicted: until release (if custodial/hospital) or 6 months after conviction (non-custodial). * During appeals: until concluded.

Answer 115

Prosecution must disclose material 'as soon as reasonably practicable' that may undermine its case or assist the defence, or confirm in writing that no such material exists. Prosecution material includes: * Material in the prosecutor’s possession relating to the case, or material inspected under the Disclosure Code of Practice. Arises: * Magistrates’ court: only if defendant pleads not guilty and case adjourned for summary trial. * Crown Court: when defendant is sent for trial or Voluntary Bill of Indictment preferred. ## Footnote (Note: no equivalent duty on defence)

Answer 116

No, is a continuing duty ! Must be reviewed, especially after receiving the defence statement. Lasts until the defendant is acquitted, convicted, or the prosecution decides not to proceed. ## Footnote Defence statement = a written statement setting out the nature of the accused’s defence, served on the prosecution and the court.

Answer 117

Note: only compulsory in CC ! i) Nature of the accused’s defence. ii) Matters of fact disputed. iii) Reasons for disputing them. iv) Particulars of facts relied upon in defence. v) Any points of law and authorities relied upon (eg any s76 / 78 applications, etc.) +details of any alibi evidence (alibi = at time of incident, I was somewhere else).. If add an alibi, need to include details of it, including any witness name, address, or identifying details if full details unknown.

Answer 118

In CC: * Within 28 days of P's initial disclosure (can be extended if court satisfied is reasonable) In M's (if served): * Within 10 business days of P's initial disclosure

Answer 119

The defence cannot apply for specific disclosure under s.8 CPIA (aka s8 application.) This application is for when defence believes P material that should have been disclosed has not been. For this application, need to: * describe the material sought, and * explain why there’s reason to believe the prosecutor has it and, * why it should be disclosed. ## Footnote (Before making s8 application, need to have served defence statement AND **P must have replied** !! Either with disclosure, or notice saying no further disclosure.) Also : this should be last resort - should first ask P for it.

Answer 120

Notice of Intention to Call Defence Witnesses = A notice stating whether they intend to call witnesses (other than the defendant), with each witness’s name, address, date of birth, or identifying information. (alibi witnesses don't need to be repeated here) (Can be amended, adding/removing witnesses.) ## Footnote Time limits (= same as for defence statement) * In CC: 28 days after prosecution disclosure * M's : 10 business days after prosecution disclosure

Answer 121

Jury may draw **adverse inferences** (although note that a D cannot be convicted solely or mainly on this basis.) Prosecution and co-defendants can also **comment** on disclosure failures (without leave of court required except where on point of of law.) * Here the only sanction is comment / adverse inferences. So cannot prevent defence from calling alibi witness not included in statement, etc! ## Footnote (No adverse inferences can be drawn in M's for failure to serve defence statement since not obligatory, however if have failures in other ways, like late / not same content - then can still have these adverse inferences or comments.)

Answer 122

Defence can try to get : - Application to stay proceedings as abuse of process. - Conviction quashed on appeal. - Delays and wasted costs. - Refusal to extend custody time limits. - Possible exclusion of evidence.

Answer 123

No — but prosecutors should take steps to obtain relevant material. And third party material should be requested where there is reason to believe the third party holds relevant material (so should not be speculative). ## Footnote If refused - could be compelled by P using summons under two statutes (depending on whether in CC or Ms).

Answer 124

An application by the prosecution asking the court to withhold material that meets the disclosure test but whose disclosure risks serious prejudice to the public interest. Court may: * withhold disclosure to the minimum extent necessary, while ensuring the defendant still gets a fair trial. * If application approved, must also be recorded - stating why its sensitive, etc.

Answer 125

1) Agreeing a witness statement as true (read out instead of live testimony). 2) Agreeing facts between parties (signed by lawyers). 3) Judicial notice (facts so well-known that proof is unnecessary, e.g. rush-hour traffic). * judicial notice 'on equiry' is when could easily check from authoritative source / easily verified ## Footnote If witness statement disputed - needs to be called to court and will have cross-examination.

Answer 126

Evidence must be relevant — logically probative of a fact in issue. Eg: in a sexual assault trial, defence wanted to show complainant had lied about her mother being dead to say was dishonest person. Court of Appeal said this was irrelevant to the issues, so should have been inadmissible.

Answer 127

Rules that keep out otherwise relevant evidence to ensure fairness (e.g. illegally obtained phone-tap).

Answer 128

Usually the jury (or magistrates) — but judges may exclude evidence if it’s so poor no reasonable reliance could be placed on it (e.g. drunk eyewitness who glimpsed suspect briefly).

Answer 129

(1) Relevance: has to be relevant to be admissible, (2) Exclusionary discretion (excluded by either s.78 or common law) - if normally relevant so admissible but should not be admitted for unfairness, (3) Inclusionary rule, where can't be admitted under (2) / by nature is inadmissible per se, may still be admitted if inclusionary rule applies, and no statutory restriction on inclusionary rule in this context ## Footnote Special character evidence = Evidence that is generally inadmissible unless an inclusionary rule applies (e.g. hearsay, bad character evidence).

Answer 130

Refuse prosecution evidence if admitting it would have such an **adverse effect on fairness** that it ought not to be admitted. Egs of breaches that could trigger this: * Searches without authority, * failure to caution, * denying access to solicitor, * oppression/tricks in interview, * improper ID procedures. However !! Note that breaches must be 'significant and substantial' to exclude evidence, and unfairness must outweigh the value of the evidence. So not just because have breach makes evidence inadmissible -- need to question whether admitting it would make trial unfair. ## Footnote Note !! This cannot be used to exclude evidence from the defence, only against Prosecution evidence.

Answer 131

Common law exclusion applies more broadly: when the probative value is outweighed by prejudicial effect. Meanwhile: s.78 focuses on fairness where PACE procedures weren’t followed. ## Footnote Eg: Police eavesdropping: lawful under PACE, but snippets of conversation may mislead → probative value outweighed by prejudice.

Answer 132

(1) Application for dismissal, (2) Submission of no case to answer, (3) Exclude under s.78 PACE, (4) Exclude confessions under s.76 PACE, (5) Exclude under common law (s.82(3) PACE), (6) Abuse of process applications.

Answer 133

**When?** Pre-trial (only in Crown Court !!) after evidence is served (so Defence knows what P have) but before arraignment (plea stage). **What**: * Whether the evidence against D would be sufficient for a properly directed jury to convict (same as the Galbraith test). -- this is the procedural rules for how and when application can be made. Controlling authority is the Galbraith test, broken down into two limbs: Judge should stop the case if: 1. No evidence D committed the crime, or 2. Prosecution evidence, even taken at its highest, could not lead a jury to properly convict.

Answer 134

Can be made in both CC and Ms. A defence application at the close of the prosecution’s case (the “half-time” stage -- which is why aka half-time submission), arguing there is insufficient evidence for conviction. Use galbraith test here, two limbs: Judge should stop the case if: 1. No evidence D committed the crime, or 2. Prosecution evidence, even taken at its highest, could not lead a jury to properly convict. ## Footnote (Heard in the absence of jury in CC, if unsuccessful, jury never told application was made.)

Answer 135

Seeks to stay proceedings entirely where continuing would be fundamentally unfair or damage the integrity of the justice system. * Eg: where police deliberately destroyed evidence that would have assisted defence. 2 categories: 1. D cannot have a fair trial, or 2. Continuing the trial would undermine justice / public confidence (e.g. prosecutorial misconduct, trickery, destroyed evidence). ## Footnote Note ! Not same as not guilty verdict - although proceedings stayed permanently, not equivalent to acquittal.

Answer 136

Defendant tricked/coerced into offending Prosecuted despite promise not to be Police undermine justice (e.g., destroy defence evidence) Prosecution misuses court process to deny legal protections Delay by prosecution: deliberate tactical delay or excessive/unconscionable delay causing prejudice

Answer 137

A trial within a trial (without the jury) to resolve factual disputes relevant to a s.78 application. Applies normal standard of proof - prosecution must prove their version beyond reasonable doubt.

Answer 138

The Court of Appeal will only interfere if the decision was perverse (i.e. no reasonable judge could have reached it).

Answer 139

Any statement wholly or partly adverse to the maker, whether to a person in authority or not, and whether made in words or otherwise. So includes these types of statements: * Unequivocal confessions of guilt (“I did it”) * Mixed statements (partly inculpatory/exculpatory) * Nods, signs, or gestures (not just words).

Answer 140

Confession can be excluded under s76, based on two grounds, if: 1. Obtained by **oppression** (torture, inhuman or degrading treatment, or use/threat of violence, exercise of authority/power in burdensome, harsh or wrongful manner.) OR 2. Obtained by anything said/done likely to render the confession **unreliable**. (cannot here be something internally that D thought, has to be an external thing - so not just because might be beneficial to confess to get bail, but police said something for eg.) ## Footnote Btw exclusion is about method of getting it rather than whether confession is true or not.

Answer 141

Prosecution must prove **beyond reasonable doubt** that the confession was not obtained by oppression or unreliably. Does not arise whenever there is confession tho - first defence needs to make representation to court that should be excluded based on s76 - then burden on prosecution to prove beyond reasonable doubt that it was NOT obtained in such a way. ## Footnote Note: court can also raise it as an issue first, does not need to wait for defence to raise it !

Answer 142

Was anything said or done likely, in the circumstances, to render any confession unreliable (= cannot be relied upon as being the truth)? Approach (according to caselaw): 1. Identify the thing said/done. 2. Ask if it was likely to render confession unreliable (objective test). 3. Ask if prosecution proved beyond reasonable doubt that confession not obtained as a result. SO: Court considers a hypothetical question: was a confession in those circumstances likely to be unreliable? The issue isn’t whether the actual confession was false, but whether the circumstances were likely to produce an unreliable confession. ## Footnote Eg of things said/done: * Promises of release/bail for confession * Threats to arrest family if suspect doesn’t “cooperate” * Interviewing juveniles/vulnerable suspects without an appropriate adult * Denial of legal advice. * Deprivation of sleep for hours.

Answer 143

Yes: under s.76(4), facts discovered as a result remain admissible, and speech/writing may be used to show how the accused expresses himself. SO: exclusion of a confession under s.76 does NOT bar “fruits of the poisoned tree”... So facts discovered remain admissible, but prosecution CANNOT link discovery to defendant’s words (eg: can't tell you what D said but found body because of it - would be a loophole otherwise, so cannot do this!) ## Footnote Caselaw example of when something still used: confession excluded but police used spelling of “Justin” as evidence of how the accused wrote that name.

Answer 144

s.76 = applies only to confessions, mandatory exclusion if oppression/unreliability. s.78 = applies to all prosecution evidence, discretionary exclusion if admission would make trial unfair.

Answer 145

Make a timed, signed record of the confession, ask the suspect to read and confirm/correct it, and put the confession to the suspect at the start of the formal interview.

Answer 146

1) Oppression s76 2) Unreliability s76 3) Unfairness - adverse to proceedings (s78) For oppression and unreliability need to show causal link between it and the confession. Burden of proof is on prosecution once defence has raised it as an issue (prosecution need to show beyond reasonable doubt) For oppression and unreliability (s76): if prosecution fails, court MUST exclude it. For unfairness (s78): court's general discretionary power for exclusion of evidence (so not confession specific.)

Answer 147

Standard to which prosecution is put to proof is always '`so you are sure of guilt`' -- modern version of saying 'beyond reasonable doubt'.

Answer 148

1. Legal burden: what we mean when saying burden to prove element of the case. Usually prosecution holds this (unless specific defence where places it on D -- eg insanity, diminished responsibility.) It is a **question of fact** as to whether this has been displaced !! (so for jury in CC) 2. Evidential burden: burden to raise evidence, **question of law** -- judge has to decide whether sufficient evidence has been raised to be able to be proved by jury later... So about whether can be put to jury at all !

Answer 149

Normally, whoever bears the legal burden also bears the evidential burden (must “pass the judge”). Exceptionally, they can separate — main example: `self-defence`: * Defence: has evidential burden → must raise *some* evidence of self-defence to put it before the jury. * Prosecution: still has has legal burden → must then prove beyond reasonable doubt that the force was unlawful, i.e. *not* in self-defence.

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