Areas of difficulty

Question 1

What is the difference between a police interview and police routine questioning?

Answer 1

• Police interview is of a suspect about their alleged involvement in an offence - usually takes place after arrest
• Routine questioning is the police asking an individual details about an incident to gain further information

Question 2

Can a confession given during routine police questioning be admissible?

Answer 2

The general rule is a confession is admissible if relevant provided no exclusions under s76 or s78 apply

When conducting a routine questioning, the police do not have to comply with the interview requirements under PACE

Question 3

When does the business document exception apply for admissible hearsay?

Answer 3

A business document can be admitted as hearsay if the document was created in:
- the course of profession, trade, business or other occupation
- the person who supplies the information has personal knowledge of the matter; and
- the person who receives the information does so in the course of a trade, business, profession or other occupation

Question 4

What happens if a conflict of interest arises when a solicitor is acting for two clients (co-defendants)?

Answer 4

Cease acting for both

If a solicitor acts for two clients (because there is no conflict of interest or significant risk of one or because the exceptions under Rule 6.2 of the Code are relied on) and then a conflict arises, the solicitor must stop acting for one of the clients.
But they may need to cease acting for both because the duty to disclose relevant information under 6.4 may clash with the duty of confidentiality under 6.3 to former clients

Question 5

In what circumstances is a co-defendant competent and compellable?

Answer 5

A co-defendant is neither competent nor compellable as a witness for the prosecution, unless they are no longer a defendant (e.g., they plead guilty)

Question 6

Does a previous conviction amount to bad character evidence?

Answer 6

Yes, a previous conviction amounts to bad character under s98

• need to see if there is a gateway to admit it

Question 7

What is the position on taking intimate samples of a suspect?

Answer 7

• the suspect must consent
• the taking of the sample must be authorised by an inspector or above
• authority and consent must be in writing

Reasonable force cannot be used

Question 8

What is required for adverse inferences under s36 and s37 to be drawn at trial?

Answer 8

For these adverse inferences to be drawn - the police officer must give a special warning and a caution before asking questions

The jury cannot draw an adverse inference if the police do not give the special warning at the time of interview

• s36 (object/mark) and s37 (presence at scene) arise from arrest
• there is no requirement for reasonableness (unlike s34)

Question 9

What are the requirements for a properly conducted interview?

Answer 9

• Must take place in an interview room in a designated police station (according to PACE recommendations)
• is recorded
• done under caution
• in the presence of a lawyer - asks if suspect wants solicitor present
• gives client option to suspend interview and have further consultations with solicitor

Question 10

What happens if a suspect refuses to have an interview in the interview room?

Answer 10

• an interview does not have to be conducted with suspect’s consent and if necessary can be done in the cell room if the suspect refuses to be taken to the interview room

Must still comply with PACE Code C: done under caution, sufficient disclosure, asked if suspect wants solicitor present

Question 11

What is Sentencing Guideline’s approach to sentencing?

Answer 11

1. Determine offence seriousness
2. Consider aggravating factors
3. Consider mitigating factors
4. Consider any assistance given to prosecution
5. Consider appropriate reduction for any guilty plea
6. Consider totality
7. Appropriate ancillary orders must be considered

Deliver sentence and give reasons

Question 12

What powers do the police have under PACE Code D to get fingerprints?

Answer 12

The police can use reasonable force

• this can be done where the suspect refuses to consent
• fingerprints are not an intimate sample - meaning reasonable force can be used to get them

Question 13

When must the first detention review take place and by whom?

Answer 13

• suspect’s detention must be reviewed by the review officer (officer of at least the rank of inspector not involved in the case)
• the first review must take place no more than 6 hours after the custody officer first authorised the detention

Relevant time for review = time at which detention was authorised

Question 14

What is the maximum time in policy custody without charge (without extensions)?

Answer 14

24 hours
- starts from relevant time = arrival at police station

Question 15

What are the powers to extend detention?

Answer 15

Detention can be extended for a further 12 hours, taking maximum period of detention to 36 hours

• Investigating officer request extension of time in detention from the superintendent for up to 36 hours
• authorised by superintendent and an indictable offence

Question 16

From when does the detention clock start running?

Answer 16

For a suspect arrested and brought to the police station, the detention clock starts when they arrive at the police station

• detention clock = maximum time police can detain a suspect without charge
• the police have 24 hours (unless superintendent authorises more time up to max of 36 hours)

Question 17

What ID procedure should be used by the police, if practicable?

Answer 17

Video identification
- this must be considered and used by the police above other procedures, provided it is practicable

Question 18

When must the defence disclose its defence case statement (in CC)?

Answer 18

In Crown Court, once the CPS has made its disclosure of unused material, the defence must disclose its defence case statement, which contains details of the defence and must include details of any witnesses, including alibi witnesses

Question 19

What happens if the defence fail to include witness details in the defence statement that they later want to rely on?

Answer 19

The prosecution can comment on the and the jury can draw adverse inferences

Question 20

When must the defence serve its defence case statement?

Answer 20

Within 28 days of CPS’ disclosure of unused material (Crown Court)

Question 21

Can the police ask the participants in a parade to speak (identification parade)?

Answer 21

Yes, but only if the witness insists after the police remind them that the participants selected for appearance and if the witness can identify by appearance only

Question 22

When are consecutive jail terms used?

Answer 22

Consecutively is used when:
- D has used violence to resist arrest for another offence;
- used violence to make good his escape; or
- committed an offence on bail granted for another offence

Question 23

When is a concurrent jail term used?

Answer 23

Jail terms run concurrently when a defendant serves multiple sentences at the time time. This is most appropriate when the offences are related or a series of similar offences

Question 24

What is the age of a young offender?

Answer 24

10 - 17

17 and younger = youth

Question 25

Where does the youth have their first hearing if they are jointly charged with an adult?

Answer 25

The first hearing takes place with the adult in the magistrates court

Question 26

What happens if a youth is jointly charged with an adult for a summary offence?

Answer 26

If a youth is jointly charged with an adult for a summary offence, they will be tried together in the magistrates’ court. It is then common for the youth to be remitted to the youth court for sentencing

Question 27

What must be considered for a youth jointly charged with an adult to be sent to Crown Court?

Answer 27

The interests of justice

Question 28

Youth sentence: detention and training order

Answer 28

This is a custodial sentence and can only be imposed when relevant threshold is passed
- cannot be imposed for under 14s
- maximum length is 2years
- The offence must be punishable by imprisonment, cross the custody threshold and a custodial sentence must be merited before one of these requirements can be imposed
- can only be imposed on child under 15 if they are a persistent offender

Question 29

What is a referral order (youth sentencing)

Answer 29

Requires an offender to attend each of the meetings of a youth offender panel established for offender
- minimum of 3 to maximum of 12 months

Crown Court cannot give a referral order

Compulsory conditions:
- offence must be imprisonable
- defendant must plead guilty
- defendant must have had no previous convictions
- a further referral order can be made if the youth commits another offence

Question 30

What happens if a youth turns 18 before their first court appearance?

Answer 30

If it is an indictable offence, they can elect a Crown Court trial
- they will be dealt with as an adult

Question 31

When can the secondary participant’s liability exceed that of the principal?

Answer 31

The secondary participant’s liability may exceed the principal’s where the secondary participants procures the commission of the conduct element of the offence, but his fault is greater than the principal’s

Question 32

How many people take part in identification procedures (such as video ID)?

Answer 32

At least 8 other people along with the suspect
= 9 in total
- the 8 other people should resemble the suspect in age, height and general appearance

• only where there are two suspects of similar appearance will at least 12 images be shown

Question 33

What steps must be taken if the defendant has a distinguishing feature when conducting ID procedures?

Answer 33

Reasonable steps taken to conceal the distinctive feature

• e.g., cover up a scar on D’s face

Question 34

What is the test for recklessness?

Answer 34

R v G an individual is reckless if:
- they are aware of a risk that a particular outcome will occur due to their actions
- it is, in the circumstances known to the defendant, an unreasonable risk to take

• subjective recklessness

Question 35

In what circumstances does ID procedure not need to take place?

Answer 35

An ID procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving/disproving the suspect was involved
E.g., the suspect is already known to the eye witness

Question 36

What is the actus reus for common assault

Answer 36

Causing the victim to apprehend immediate and unlawful personal violence –> considered from the victim’s perspective
- victim’s reasonable belief

• apprehend: victim expects or anticipates, but not necessarily fear
• immediate: immediate future. Does not mean instantaneous (could be next few minutes). But apprehension in the future would not be sufficient