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BPTC Law Notes BPTC Criminal Litigation Notes

Criminal Litigation Revision Questions

Updated Criminal Litigation Revision Questions Notes

BPTC Criminal Litigation Notes

BPTC Criminal Litigation

Approximately 1169 pages

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Criminal Litigation Revision Questions

What are the three methods of commencing proceedings?

  1. Written charge and requisition (for public prosecutions);

  2. Laying information before prosecutor and issue of summons by a court (for private prosecutions or public where written charge not in force);

  3. Arrest and charge by police
What are the grounds for the police arresting someone?

An arrest may be made if:

  1. Defendant (‘D’) is about to commit a crime;

  2. D is committing a crime;

  3. There are reasonable grounds to believe D is about to commit a crime; or

  4. There are reasonable grounds to believe D is committing a crime.

However the arrest must be necessary to:

  1. Ascertain D’s name or address;

  2. Prevent D:

  1. Causing physical harm to himself or another;

  2. Suffering physical harm;

  3. Causing loss of/damage to property;

  4. Committing an offence against public indecency;

  5. Causing an unlawful obstruction of a public highway;

  1. Protect a child or vulnerable person from D;

  2. Allow a prompt and effective investigation of the offence or conduct of D; or

  3. Stop D disappearing.
How long may D be detailed before charge?

36hrs within the powers of the police, and an addition 36hrs with permission of the Mags’ (generally 2 lay justices).

D may not be detailed more than 96hrs without charge!
What is the initial test for detaining D?

Detention is required to:

  1. Secure/preserve evidence relating to offence; or

  2. Obtain evidence by questioning suspect.

This test is used until 24hrs.
What test is applied at 24hrs?

Same as initial test, with 2 added elements:

  1. Offence is indictable; and

  2. Investigation is being done ‘diligently and expeditiously’.

This test is applied by Superintendent at 24hrs, and Mags’ for giving ‘warrant for further detention’.
On what grounds may D be kept in custody, rather than released on police bail, after charged?

  1. D’s name or address cannot be ascertained or those given by D are doubted;

  2. Reasonable grounds for believing D will fail to surrender;

  3. D is charged with an imprisonable offence and there are reasonable grounds for believing that D will commit further offences;

  4. Reasonable ground to believe D will interfere with witnesses or attempt to prevent the course of justice;

  5. Own protection
When is there a presumption in favour of bail?

In all situations, except where:

  1. When being arrested;

  2. When being charged with an offence;

  3. After conviction unless:

  1. Case is adjourned for PSR;

  2. D is brought to court for breach of a community order/youth community order;

  1. D was on bail when he committed this offence, and this offence is triable either-way or on indictment;

  2. D is charged with murder, manslaughter or other sexual offences (including rape) and has a previous conviction for one of these offences.
What is the maximum time D should spend in custody before trial?

In Mags’ for summary offence: 56days, beginning from first appearance

In Mags’ for either-way offence: 70days, beginning from first appearance

In Crown Court for either-way offence: 112days, beginning from date he was sent for trial by the Mags’.

In Crown Court for indictable offence: 182days, beginning from date case was sent up by Mags’.

The time ends with arraignment.
What are the grounds for withholding bail if the offence is imprisonable?

  1. Substantial grounds for believing that if released D will:

  1. Fail to surrender;

  2. Commit offences while on bail;

  3. Interfere with witnesses or attempt to pervert the course of justice;

  1. Already serving a custodial sentence;

  2. D has absconded already in the present proceedings;

  3. Insufficient time for all the information to be obtained for a decision on bail to be made; and

  4. Own protection.
What are the grounds for withholding bail is the offence is non-imprisonable offence?

  1. Own protections

  2. Already serving a custodial sentence;

  3. Where D has been arrested for a bail offence in connecting with this case;

  4. Where D has previously failed to surrender, and courts is satisfied that he would not surrender again.
What are common conditions for bail?

If objection is FTS:

  • Security

  • Surety

  • Residence

  • Reporting to a police station

  • Electronic monitoring

If objection is commit further offences:

  • Stay in/out of a particular area

  • Have no contract with particular person (witnesses generally)

  • Curfew (if offence committed at night)
When can the prosecution appeal a bail decision?

  1. Imprisonable offence;

  2. Prosecution conducted by CPS;

  3. Prosecution opposed bail;

  4. Prosecution gave oral notice of intention to appeal;

  5. Notice confirmed in writing with 2hrs; and

  6. Matter of grave concern;
How can a bail decision be appealed?

D can apply for bail in Crown Court if:

  1. D has been commit for trail or sentence for either-way offence;

  2. D has been sent to Crown Court for indictable offence;

  3. Refused bail pending appeal against conviction or sentence from the Mags’; or

  4. Where Mags’ have refused a bail application.

D can apply to the High Court if:

  1. Mags’ have stated a case for the opinion of the High Court and refused bail;

  2. D is seeking judicial review on decision by Mags’ and wants bail; or

  3. Where Crown Court judge has refused bail in the course of proceedings there.
When is a PSR necessary?

Adults: It is a normal requirement in all cases, except where the court deems it unnecessary.

Child: It is required unless there is a previous report already exists and the court have had regard to it (if more than one, must be the most recent PSR).
What are common submissions in a plea in mitigation?

  • Guilty plea (if made)

  • Remorse

  • Personal circumstances (poor, drug abuse)

  • Innocent motivation

  • Age

  • Previous good character (if applicable)

  • Effects of D’s family is custodial sentence is passed.

What are the options if there is a dispute as to the facts of a guilty plea?

When are Mags’ allowed to commit for sentence?

There are three options:

  1. Accept D’s story and sentence on that basis;

  2. Accept the prosecutions version - only available if D’s version is manifestly absurd; or

  3. Hold a Newton hearing, where both parties call...

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