Criminal - Errors from Tasks

Can you elect a Crown Court trial for a summary only offence?

No, these offences can only be heard in the Magistrates Court

What are the components of Criminal Damage?

1. Without lawful excuse

2. Destroy or damage property

3. Belonging to another

4. Intentionally or recklessly

What are the intervals for extending detention at the Police Station?

• 24 Hours

• If indictable, extended to 36 Hours

• Extended by Magistrates Court to 72 Hours

• Extended by Magistrates Court to 96 Hours

What must the Police do when detaining a suspect?

Ensure the detention is regularly reviewed and the suspect is looked after

When must an Identification Procedure be used?

Where there is a known suspect who denies involvement in the offence

What is the test for dishonesty?

Would a reasonable person have acted the same way with the defendant’s imputed knowledge

What are the requirements for unlawful act manslaughter?

1. Intentionally committing an unlawful act

2. The act is objectively dangerous

3. The act caused the death

What is the test for whether an act is dangerous for the purposes of unlawful act manslaughter?

Whether the act is objectively dangerous as a reasonable and sober bystander with the knowledge of the defendant at the scene must forsee some harm

What is the test for causation for criminal litigation?

Is the action the operating and substantial cause of the harm?

If an offence is indictable, at what point does the defendant submit their plea?

Only at the Crown Court, the Magistrates’ Court is purely administrative

What are the non-financial considerations (the Widgery Criteria) for whether a defendant should receive legal representation?

1. It is likely that I will lose my liberty if any matter in the proceedings is decided against me.

2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.

3. It is likely that I will lose my livelihood.

4. It is likely that I will suffer serious damage to my reputation.

5. I may not be able to understand the proceedings or present my own case

6. The proceedings may involve the expert cross-examination of a prosecution witness

7. A substantial question of law may be involved

8. Witnesses may need to be traced or interviewed on my behalf

9. Any other reasons

What must you remember to consider when assessing the strengths and weakness of a case?

The factual elements as well as the legal elements - extract all of the facts from the fact pattern and assess which side they fall on

What are the potential advocacy tasks (for and against)?

1. Closing Speech

2. Plea in mitigation/ Aggravation

3. Hearsay Evidence

4. Discrediting evidence

5. Which court should a case be tried?

6. Remand in Custody

7. Adducing/ Excluding evidence

8. Category of Offence (and relevant range of sentences)

9. Prosecution/ Defence Submissions

10. Application for Bail (and conditions)

11. Application to vacate trial date

What is Hearsay evidence?

Any statement other than one made by a person while giving oral evidence in the proceedings is inadmissible to prove the truth of any fact stated in it

What is the exception to hearsay where served on another party?

1. Statement signed by the maker; and

2. Statement contains a declaration of truth; and

3. Statement is served on other party; and

4. Party has not objected within 7 days

What are the non-service exceptions to where hearsay is admissible?

1. Witness is unavailable

2. Preserved by common law

3. Parties agree to admission

4. Business documents

5. Confession

6. Previous inconsistent statements

7. Expert’s reports

8. Satisfied in the interests of justice test

What are the common law preservations for the admission of hearsay?

1. Res Gestae Statements

2. Confession Evidence

What is a Res Gestae statement?

Where a statement is made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

What must the Court always consider when adducing/ excluding evidence as well as the ordinary rules?

Is it in the interests of justice?

What factors may the Court consider whether allowing hearsay evidence due to fear of the witness/ victim?

1. Were they present at the crime?

2. Have the ever met the defendant?

3. Has the defendant ever tried to contact the victim/ witness?

4. What exactly are they in fear of?

5. What alternatives could the Court put in place? Video link? Evidence behind a screen?

What must you reference (legal definition) when assessing the quality of ID evidence?

The Turnbull Guidelines

How should you assess the quality of the ID evidence according to the Turnbull guidelines?

1. Time under observation

2. Proximity

3. Visibility

4. Obscurity

5. Time elapsed from observation to identification

6. Prior acquaintance

7. Discrepancies

Why is the Turnbull case important to ID evidence?

It stresses that a witness can be sure and wrong at the same time - it ensures the Judge makes a special caution to the Jury

What are the requirements for attempted murder?

1. Engage in an act which is more than merely preparatory to commit murder; and

2. Intention to kill ONLY

What must your advice be to a client who claims they are not guilty ahead of plea?

Advise them to plead not guilty however remind them that they are likely to be convicted if the evidence is strong

What must you always consider as well as evidence and aggravating/ mitigating factors when making a bail application?

Are there any conditions you can impose which may make bail more feasible? IE a curfew or electronic tag

What are the requirements for Battery?

1. Infliction of unlawful force on another person; and

2. Intention or recklessness as to the infliction of the unlawful force

What are the requirements for Assault?

1. Causing the victim to apprehend immediate application of unlawful force

2. Intentionally or recklessly

What must be satisfied in order for an omission to act to become a crime?

1. There must be a duty to act; and

2. The defendant must have failed to act in accordance with that duty

What are the two stages for causation in criminal law?

1. Factual Causation - the ‘But For’ Test

2. Legal Causation - ‘Operating and Substantial Cause’ and ‘More than minimal’

Which acts may break the chain of causation for a criminal offence (relevant to legal causation)?

1. A natural event/ ‘act of God’

2. Acts of a third party

3. Acts or omissions of the victim

When can the a natural event/ ‘act of god’ break the chain of causation?

It is the sole or immediate cause of the prohibited consequence

When can the acts of a third party break the chain of causation?

Where the third party’s actions are free, deliberate and informed however the defendant may still be liable

When can medical treatment break the chain of causation?

It must be grossly negligent which is highly unlikely

When will the acts and omissions of the victim break the chain of causation?

Only where they are ‘so daft’ as to be unforeseeable

What is oblique intention?

Where the defendant does not directly intend to commit the crime but it is aware that that the consequence is virtually certain as a result of their actions and proceeded anyway

What is transferred malice?

Where is intent is transferred to the intended victim to the actual victim, although the offence must still be the same

What is the test for recklessness?

1. Did the defendant appreciate the risk of their actions?

2. Did the defendant knowingly disregard that risk?

When may intoxication act as a defence to a crime?

Only where the crime is a specific intent crime (ie no recklessness) and the intoxication prevented the formation of the necessary intention

What are the requirements for murder?

1. Death caused unlawfully

2. By the defendant

3. Victim is a person (ie not a foetus)

4. The killing takes place under the King’s peace (ie not at war)

5. Killing was intentional (including oblique intention)

What are the potential defences to murder?

1. Loss of control

2. Diminished responsibility

3. Killing in pursuance of a suicide pact

What are the requirements for defence of loss of control?

1. Qualifying Trigger (Fear or Anger)

2. Trigger results in loss of self control (this does not need to be sudden but must not be desire for revenge)

3. A person of defendant’s sex and age with normal degree of tolerance and self-restraint might have acted in the same way

What are the requirements for the Qualifying Triggers for the Loss of Control defence?

1. Defendant fears ‘serious violence’ against them or another person

2. The things said or done were extremely grave in character and caused the defendant to have a justifiable sense of being seriously wronged

What are the requirements for the defence of diminished responsibility?

1. Defendant suffers from an abnormality of mental functioning

2. Abnormality arises from a recognised medical condition

3. Abnormality must have substantially impaired the defendant

4. Abnormality caused or significantly contributed to the killing

5. Must be proved on the balance of probabilities

What are the types of involuntary manslaughter?

1. Unlawful act manslaughter

2. Manslaughter by gross negligence

3. Corporate manslaughter

What are the requirements for gross negligence manslaughter?

1. Defendant owed the victim a duty of care

2. Defendant negligently breached that duty

3. There was a serious and obvious risk of death (disregard for the life and safety of others)

4. Risk of death was reasonably foreseeable to a reasonably prudent person

5. Breach of duty caused the death of the victim

What are the requirements for corporate manslaughter?

1. Defendant is a qualifying organisation

2. The way in which it is organised or managed causes a person’s death

3. This is a gross breach of the duty of care owed

4. A substantial element of that breach was due to senior management

5. There is no exemption (ie public policy, military/ police/ emergency activity)

What are the requirements for s47 ABH?

1. Commit an assault or battery; and

2. This causes actual bodily harm

What is actual bodily harm?

Harm which interferes with the health or comfort of the victim which is more than transient or trifling

When can psychiatric harm be treated as harm for the purposes of an offence under the OAPA 1861?

When it is a recognised clinical condition (ie depression or PTSD) and more than merely fear or panic

What are the requirements for a s20 GBH offence?

1. Defendant unlawfully or maliciously inflicts wounds or grievous bodily harm to another

2. They intended or were reckless as to some harm to another

What are the requirements for a s18 GBH offence?

1. Defendant unlawfully or maliciously inflicts wounds or grievous bodily harm to another

2. They intended to cause GBH or malicious wounding (or intends or is reckless as to causing harm to prevent an arrest)

What are the general defences to Criminal offences?

1. Self-defence

2. Duress

3. Necessity

4. Infancy

5. Mistake or ignorance

6. Intoxication

7. Consent

What is the test for self-defence?

1. Defendant honestly believe self-defence was necessary to defend themselves or another or prevent a crime?

2. Was the force used reasonable in the circumstance as the defendant believed them to be?

What are the supplementary considerations for self-defence?

1. There is no obligation on the defendant to retreat

2. The defendant may strike pre-emptively

3. The defendant may be mistaken and still rely on the defence (unless voluntarily intoxicated)

4. If the defendant is a householder, the force only need not be grossly disproportionate

What are the requirements for the defence of duress?

1. Threat must be of death or serious violence against defendant or the other person

2. Defendant’s response must have been reasonable to the threat

3. Threat must have been imminent

What are the other considerations for the defence of duress?

1. May not be advanced for a murder or attempted murder charge

2. The prosecution must prove beyond reasonable doubt that there was no duress

What are the requirements for the defence of necessity?

1. Some pressure was raised against the defendant by threats of violence

2. There was an objective threat to the defendant of others of death or serious injury

3. The defendant acted reasonably and proportionately

What is the defence of Infancy?

No child under 10 can be found guilty of a criminal offence

When may a defendant be involuntarily intoxicated?

1. Medically prescribed drugs where the intoxicating effect is unknown to the Defendant

2. Sleeping pills

3. Being spiked

To which types of defences do the intoxication defences apply?

1. Voluntary - Specific intent only

2. Involuntary - Specific and basic intent

When (example circumstances) is the defence of consent available?

1. Touching

2. Sexual activity

3. Sporting activity (according to the rules)

4. Dental or medical treatment by a qualified practitioner

5. Horseplay where the victim has consented

What are the requirements for consent?

1. Consent must be real

2. Victim must not be deceived

3. Consent must be fully informed

4. Consent may implied and limited by law

What is a householder for the purposes of self-defence?

A person who is not trespassing in the property and believes that the victim is a trespasser

To what types of offences do inchoate offences apply?

To indictable offences only

What is the requirement for an inchoate offence?

1. Intend to commit the relevant offence; and

2. Do an act which is more than merely preparatory to the commission of the offence

How do impossibility and inchoate offences interact?

Impossibility is only a defence where the offence is impossible in terms of law rather than the facts make it impossible

What are the requirements for conspiracy to an offence?

1. To agree with at least one other person to carry out an offence

2. To intend to enter into the agreement and intend that the agreement is carried out

3. Defendant must have knowledge of the circumstances of the offence

What are the possible offences for assisting or encouraging a crime?

1. Intentionally encouraging or assisting an offence

2. Encouraging or assisting an offence believing it will be committed

3. Encouraging or assisting offences believing one or more will be committed

What is a secondary offender?

A person who assists or encourages a person to commit a crime but does not actually commit the actus reus - they are to be tried as a principal offender

How may a person become a secondary offender?

1. Aiding - providing actual assistance

2. Abetting - providing encouragement at the time of the offence

3. Counselling - Advising or urging before the offence

4. Procuring - Making events happen to that

What is the stance on Agent Provocateurs?

A defendant cannot argue that they would not have committed the offence if no for the agent provocateur (ie under cover police officers)

What are the requirements for Secondary Participation?

1. Aiding, abetting, counselling or procuring;

2. A criminal offence;

3. Intending to do so; and

4. Knowing the essential matters which constitute the principal offence

How may a secondary party ‘withdraw’ from an offence?

1. Before the event - simple communication of withdrawal

2. During the offence - Do more than simply communicate, they must ‘countermand’ or ‘repent’

What are the requirements for Criminal Damage?

1. A person without lawful excuse destroy or damages property; and

2. Intends to or is reckless as to the damage or destruction

What is the test for recklessness?

1. A circumstance where the defendant knows there is a risk;

2. A result when they are aware the risk will occur; and

3. In the known circumstances, it is unreasonable to take that risk

What is the definition of ‘damage’?

• damage need not be permanent

• damage need not be tangible or visible if it affects the value or performance of the property

• Must be more than purely nominal

What are the requirements for aggravated criminal damage?

1. The person commits criminal damage (to any property including their own); and

2. Intends to or is reckless as to endangering the life of another (which must be connected to the property damage itself)

What are the requirements for theft?

Dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it

What is the test for dishonesty?

1. What are the defendnat’s knowledge or belief as to the facts?

2. In light of that, is the defendant’s behaviour dishonest by the standards of ordinary, honest and decent people

What are the requirements for Burglary?

1. Entering a building or part of a building as a trespasser with intent to commit theft, GBH or criminal damage; or

2. Having entered as a trespasser, stealing or inflicting/ attempting to inflict GBH

3. For both offences - Defendant must intend or be reckless as to their trespassing

What is the definition of a building?

A permanent structure but may also include inhabited vehicles or temporary structures which had been in the same position for many years

What are the requirements for aggravated burglary?

1. The defendant commits either burglary offence; and

2. At the same time, the defendant has with them a firearm, offensive weapon or explosive

What are the requirements for robbery?

1. The defendant commits theft; and

2. At the time of or immediately prior to the theft, the Defendant used force or the threat of force to affect the theft

3. The Defendant intends to use that force to affect the theft

What are the requirements for fraud by false representation?

1. Defendant made a false representation

2. Knowing the representation may be untrue or misleading, honestly intending to make a gain for himself or cause a loss for another

What are the requirements for fraud by failing to disclose information?

1. Failing to disclose information when there was a legal duty to do so

2. Dishonestly intending by that failure to make a gain for themselves or another or cause a loss to another or expose another to risk of loss

What are the requirements for fraud by abuse of position?

1. The defendant occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person and they abused that position (by act or omission); and

2. Dishonestly intended to make a gain for himself or cause a loss to anther or to expose another to a risk of loss

Under which sections may evidence be excluded?

s76 and s78 PACE 1984

How soon after arrest should the suspect be taken to the police station?

As soon as reasonably practicable

What is the role of the Custody Officer?

1. Independent and impartial to investigation

2. Searches the suspect on arrival at station

3. Compiles custody record

4. Informs suspect of legal right

5. Undertakes physical and mental health assessment

6. May decide whether to charge the suspect

What must the custody record contain?

1. Time and location of arrest

2. Reason for detention

3. Authorisation of search procedures or continued detention

4. Requests for legal/ medical advice

5. Reviews of detention

6. Details of meals and refreshments

What rights must the custody officer inform the suspect of?

1. Inform someone of their arrest

2. Consult privately with their solicitor

3. Consults the Codes of Practice

On what (subjective only) grounds may a custody officer search a suspect?

1. Cause physical injury to themself or another person

2. Damage property

3. Interfere with evidence

4. Assist them to escape

5. Evidence may relate to an offence

What is the ‘relevant time’ for the purposes of detention time limits?

• For involuntary attendance at station - when arriving at the station

• For voluntary attendance at station - the time of the arrest

What are the requirements for when a suspect’s rights at the police station be delayed?

• Where arrested for an either-way or indictable offence; and

• Reasonable grounds to suspect interference

• Authorised by inspector (for informing someone of arrest) or superintendent (for legal advice)

When is free legal advice restricted to just a phone call?

1. Non-imprisonable offence

2. Offence is failing to appear in court

3. Offence is driving with excess alcohol

4. Offence is failing to provide a specimen while driving while unfit

5. Breach of police or court bail conditions

Who are considered vulnerable suspects and what are they entitled to?

They are entitled to an appropriate adult and are:

• Under 18;

• Mentally disordered; or

• Mentally vulnerable

What is the role of the appropriate adult?

Look after the suspect’s interested to ensure their legal rights are respected

What is the requirement for a fair interview?

No interviewer may try to obtain answers or elicit a statement by the use of oppression