CLP Flashcards
Which of the following is not a key part of the criminal justice process as discussed in this element?
Arrest
Plea
The prevention of crime
Appeal
Trial
The prevention of crime
Correct. The key elements of the criminal justice process discussed in this element were: arrest/ requisition, plea, trial, sentencing and appeals. The prevention of crime is more of a matter for criminology studies but does become a factor when sentencing someone found guilty of a crime.
All of the following bodies can bring prosecutions. However, which of the following is the main body which brings prosecutions in England and Wales?
Transport for London
Crown Prosecution Service
Private individuals
Health and safety executive
Railway operators
Crown Prosecution Service
Correct. Other bodies such as Transport for London, railway operators and the Health and Safety Executive prosecute their own matters. Private individuals can bring prosecutions too but the CPS has the right to intervene and take over such cases.
What is the main statute that governs police conduct in criminal investigations?
Police and Criminal Evidence Act 1984
Governance of Police Powers Act 1984
Police Powers Act 1984
Police and Criminal Evidence Act 1984
Correct. Commonly known as ‘PACE’ which is accompanied by Codes of Practice.
What does trial on indictment mean?
Trial by magistrates in a magistrates’ court
Trial by jury in the Crown Court
Trial by jury in a magistrates’ court
Trial by jury in the Crown Court
Correct. Either-way offences and indictable only offences can be heard before a jury.
What are the three classifications of offences?
Property offences, fatal offences and non-fatal offences against the person
Low, medium and high
Summary, either-way and indictable only
Summary, either-way and indictable only
Correct. Either-way offences are also known as ‘indictable’ as they are capable of being tried on indictment.
If the statute provides a maximum penalty on summary conviction but does not provide for a penalty on conviction on indictment, what type of offence is it?
Either-way offence
Indictable offence
Summary offence
Summary offence
Correct. Reading the statute is one of the ways to determine the classification of an offence.
If the statute provides one penalty for summary conviction and a different one for conviction on indictment, what type of offence is it?
Summary
Either-way
Indictable only
Either-way
Correct. A close reading of the statute is one way to tell whether an offence is either-way. An offence can also be either-way if listed in Schedule 1, Magistrates’ Courts Act 1980.
If the statute provides only for a penalty on conviction on indictment or is a common-law offence what type of offence is it?
Indictable-only
Either-way
Summary
Indictable-only
Correct. Reading the statute and knowledge of the common-law offences helps determine the classification of offences.
Which judges can sit in a summary trial?
Lay justices, District Judges or Deputy District Judges
Lay justices
District Judges
Lay justices or District Judges
Lay justices, District Judges or Deputy District Judges
Correct. Lay justices (also known as Justices of the Peace), District Judges (a salaried judge) or a Deputy District Judge (a solicitor or barrister with a part-time judicial post) can conduct trials in the magistrates’ court.
What is the function of a jury in a Crown Court trial?
Tribunal of fact
Sums up the case
Tribunal of law
Tribunal of fact
Correct. There are certain circumstances in which the judge may also act as a tribunal of fact such as when hearing a submission of no case to answer, a voir dire or a Newton hearing which will be considered in separate elements.
How are the roles of tribunal of fact and tribunal of law dealt with in the magistrates’ court?
The magistrates are the tribunal of law, there is no tribunal of fact
The magistrates are the tribunal of fact and the legal advisor is the tribunal of law
The magistrates are the tribunal of fact and tribunal of law
The magistrates are the tribunal of fact and tribunal of law
Correct. This is arguably an unsatisfactory position when the magistrates make a ruling of law that certain evidence is inadmissible but hear the evidence in order to make that decision. In contrast, in the Crown court it would be the judge that would make a ruling of law that certain evidence is inadmissible and the jury would never hear the evidence.
How many Crown Courts are there in England and Wales?
More than 20
Less than 10
One
10-19
One
Correct. The Crown Court is regarded as a single court that sits in different places.
Which of the following correctly sets out the position regarding accepting third party instructions to represent a client at the police station?
You can only accept instructions from the client or someone properly authorised to provide instructions on their behalf.
You can only accept instructions from the client.
You can only accept instructions from the police officer in charge of the case.
You can only accept instructions from the client or someone properly authorised to provide instructions on their behalf.
Correct. This can include a relative or family member of the person who is being detained in police custody. You should contact the police station and ask to speak with the client to confirm that they wish to instruct you and ensure they have not asked for another solicitor or the duty solicitor to act on their behalf.
Which of the following correctly sets out the position you should take if a conflict of interest arises between clients?
If there is a conflict of interests between clients, or a risk of one, you must obtain written authority to continue to act for both of them.
If there is a conflict of interests between clients, or a risk of one, you must not act for all, or possibly any, of them.
If there is a conflict of interests between clients, or a risk of one, you must continue to act for both of them but make them aware of the conflict.
If there is a conflict of interests between clients, or a risk of one, you must not act for all, or possibly any, of them.
Correct. You must not act for two clients if there is a conflict, or risk of conflict. You would not be able to act in either client’s best interests if a conflict arises. Please see the Law Society Practice Note on Conflicts of Interest.
Which of the following correctly sets out the position regarding your duties of confidentiality and disclosure?
The duty of disclosure always overrides the duty of confidentiality.
The duty of confidentiality always overrides the duty of disclosure.
The duty of disclosure sometimes overrides the duty of confidentiality.
The duty of confidentiality sometimes overrides the duty of disclosure.
The duty of confidentiality always overrides the duty of disclosure.
Correct. Confidentiality always overrides disclosure but if you are unable to disclose important information to a client because of your duty of confidentiality then you will need to cease to act for the client as you will be unable to act in that client’s best interests.
Your client’s case is set for trial and they have told you that they are guilty of the offence. Which of the following correctly sets out your position?
You can continue to represent the client but only if they change their plea to guilty.
You can continue to represent the client, but you cannot advance a positive case.
You can continue to represent the client and put forward a defence.
You can continue to represent the client, but you cannot advance a positive case.
Correct. You owe a duty not to mislead the court. You can continue to act even if your client has told you that they are guilty of the offence but only if you or your client do not try to put forward a case in your client’s defence
You represent a man suspected of the offence of battery and is charged with common assault. He is currently out of work and so receives welfare benefits.
Which of the following best explains whether you client is eligible for public funding?
He will pass the means test if he can show that his income and capital are below a certain limit.
He will automatically pass the means test because he is in receipt of welfare benefits but he must also pass the merits test to be eligible.
He will have to pass both the means test and the merits test in order to be granted public funding.
He will automatically qualify for public funding because he is in receipt of welfare benefits.
He will receive public funding because the offence of battery is an imprisonable offence.
He will automatically pass the means test because he is in receipt of welfare benefits but he must also pass the merits test to be eligible.
correct
He is passported through the means test because of his receipt of welfare benefits, but he will still have to show that it is in the interests of justice for him to receive public funding for his defence.
The other answers are plausible but incorrect:
- He does not need to pass the means test – he automatically passes it
- He won’t automatically qualify for public funding because he still has to pass the merits test
- Whether the offence is imprisonable or not is not a deciding factor.
Your client has been charged with burglary. She is in receipt of benefits and therefore is passported through the means test. You are assisting your client in completing the CRM 14 form.
She informs you that she has numerous convictions for burglary, including one last year when she was given a suspended sentence. She denies the offence and says she has an alibi. However, your client is worried about what the arresting officer will say. The arresting officer said she had admitted the offence on arrest, when she did not say anything. She’s also worried about her daughter who is only 12 and will be left on her own if she is sent to prison.
Which of these is not a matter to include in the CRM 14 form?
An alibi witness will need to be traced and interviewed
The proceedings will involve the cross examination of a police officer
It is in the interests of her daughter that she is represented
She has been given a sentence that is suspended which will be activated if she is convicted of the current offence
She is likely to lose her liberty
It is in the interests of her daughter that she is represented
For the purposes of the merits/ interests of justice test, the interests of another person does not include family members impacted by a sentence.
Your client is a university professor who lives alone and earns £90,000. He is suspected of the offence of battery on a student and is charged with common assault. He is due to appear before the magistrates’ court He has no previous offences and intends to plead not guilty.
Is your client likely to obtain a representation order that grants public funding for his defence?
He will not obtain a representation order because he is not in receipt of benefits
He will obtain a representation order because it is likely he will lose his livelihood
He will not obtain a representation order as will fail the means test
He will not obtain a representation order because it is not in the interests of justice that he be represented
He will obtain a representation order because it is likely that he will suffer serious damage to his reputation
He will not obtain a representation order as will fail the means test
In light of the university professor’s salary and the size of his household (he lives alone) he will be ineligible for public funding because his weighted gross annual income will be above the upper threshold i.e. £22, 325.
The other answers while plausible are incorrect:
· While he will suffer serious damage to his reputation, might lose his livelihood and therefore it might be in the interests of justice that he be represented, he will not pass the means test.
· While he is not in receipt of benefits that does not mean he will automatically fail the means test.
A man has been arrested on suspicion of common assault by battery. He is a professional football player earning £180,000 per year. It is alleged that the man punched a photographer who was trying to take a picture of him whilst he was having a drink with a woman in a bar. The man has never been in trouble with the police before.
Will the man be entitled to publicly funded legal representation in connection with the defence of his case?
A. The man will not be eligible for publicly funded legal representation by the duty solicitor at the police station because he will fail the means test.
B. The man will be eligible for publicly funded legal representation by the duty solicitor at the police station and at all hearings up to and including sentence.
C.The man will be eligible for publicly funded legal representation by the duty solicitor at the police station limited to telephone advice only.
D.The man will be eligible for publicly funded legal representation by the duty solicitorat the police station. He will also be able to get a representation order in the magistrates’ court provided that he passes the interests of justice test, because there is no means test in the magistrates’ court.
E. The man will be eligible for publicly funded legal representation by the duty solicitor at the police station. He will not be able to get a representation order in the magistrates’ court, because even if he passes the interests of justice test, he will fail the means test which applies in the magistrates’ court.
E. The man will be eligible for publicly funded legal representation by the duty solicitor at the police station. He will not be able to get a representation order in the magistrates’ court, because even if he passes the interests of justice test, he will fail the means test which applies in the magistrates’ court.
A – everyone gets funding at police station
B – “at all hearings including …” is wrong – only at the police station!
C – not limited to telephone advice because it is an imprisonable offence
D – there is a means test
What is the status of the rules of conduct on police powers in criminal courts?
The codes are admissible in evidence in criminal proceedings only
The codes are admissible in evidence in criminal or civil proceedings
The codes are inadmissible in evidence in criminal or civil proceedings
The codes are admissible in evidence in civil proceedings only
The codes are admissible in evidence in criminal or civil proceedings
Correct. Subject to relevance, the PACE Codes of Practice are admissible in evidence in criminal or civil proceedings.
What does a custody officer do?
Advises on charge
Arrests the suspect
Authorises detention and release from detention at a police station
Authorises detention and release from detention at a police station
Correct. A custody officer must be appointed for each designated police station and must be of the rank of at least sergeant. The custody officer is also responsible for ensuring that the detainee is treated in accordance with PACE 1984 and the Codes of Practice, noting down all the required matters on the custody record.
(but not review of detention: Reviews of detention —the review officer who is at least the rank of inspector and not the custody officer, must be satisfied that detention is still necessary)
For how long may the police keep a suspect of an indictable offence in custody prior to charge before applying for a warrant of further detention?
24 hours
72 hours
48 hours
96 hours
36 hours
36 hours
Correct. Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.
For how long may the police keep a suspect of an indictable offence in custody prior to charge before applying for a warrant of further detention?
24 hours
72 hours
48 hours
96 hours
36 hours
36 hours
Correct. Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.
What rights will a detainee be told of by the custody officer?
The right to consult privately with a solicitor and the right to free independent legal advice
The right to consult privately with a solicitor, the right to free independent legal advice and the right to a telephone call
The right to consult privately with a solicitor, the right to free independent legal advice and the right to have someone informed of their arrest
The right to consult privately with a solicitor, the right to free independent legal advice and the right to have someone informed of their arrest
Correct. The right to legal advice can be delayed in certain circumstances.
If access to an interpreter is delayed and the police wish to proceed with the interview in order to minimise physical harm to others, what rank of police officer must authorise this?
Chief Inspector
Inspector
Superintendent
Constable
Superintendent
Correct. Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter unless authorisation is given by an officer of the rank of superintendent or above who is satisfied that delaying the interview will lead to:
- interference with, or harm to, evidence; or
- interference with or physical harm to other people; or
serious loss of, or damage to, property.
Which of the following can act as an appropriate adult to someone under the age of 18?
Estranged parent
Police Officer
Social worker
Solicitor
Social worker
Correct. In the case of a young person looked after under the Children Act 1989 a social worker could act as an appropriate adult. Alternatively, a parent or guardian could act as an appropriate adult.
Just prior to his interview, Rory is shouting that he is Napoleon and hurling himself against the wall of his cell. Which answer below correctly describes police duties here?
If police suspect Rory may be mentally disordered he must have an appropriate adult present at the police station
Police should investigate any mental health concerns, if time permits
Police should ensure access to a doctor but nothing else
They must ensure his safety and that of their officers but nothing else
If police suspect Rory may be mentally disordered he must have an appropriate adult present at the police station
Correct. This is the initial action to be taken in respect of those that are mentally disordered or have other forms of vulnerability, informing the appropriate adult and asking them to come to the police station.
A woman is arrested by a police constable on the street outside her house for the offence of burglary. The officer arrests her, cautions her and then asks the woman where she was last night. The woman answers.
Which of the following best explains whether this an interview?
The police constable’s question does not amount to an interview because it’s just one question.
The police constable’s question does not amount to an interview as she is not being interviewed formally and her comments are not being audio recorded.
The police constable’s question amounts to an interview but it did not need to take place at the police station as she was cautioned.
The police constable’s question amounts to an interview which should have taken place at the police station.
The police constable’s question amounts to an interview which should have taken place at the police station.
This falls within the definition of an interview under the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A – she is being questioned regarding her suspected involvement in an offence. Interviews should take place at a police station unless an exception applies e.g. where delay would hinder the recovery of property. None of the exceptions seem to apply in this instance. The defence can apply under s 78 PACE 1984 to have her answers ruled inadmissible.
A man is arrested for fraud. At the police station he speaks to his solicitor and informs her that he believes the police are in possession of some accounting paperwork that they took from his office when he was arrested. The solicitor speaks to the investigating officer who provides a short background to the case but will not confirm whether the police have the accounting paperwork or what was found in any such paperwork. The man tells the solicitor that he is concerned about an ambush in the interview and asks the solicitor if the police are acting unlawfully regarding disclosure.
Have the police have properly complied with their disclosure obligations?
No because the police are unlawfully withholding evidence.
No because the police have the discretion to disclose what they decide best assists their line of questioning in interview without reference to the solicitor or the man.
No because the police are obliged to provide the solicitor with any relevant disclosure that the solicitor reasonably requests.
Yes because the police do not have to provide information on the accounting paperwork, as long as they give the solicitor sufficient information to understand the nature of the offence and why the man is suspected.
Yes because the police do not have to provide information on the accounting paperwork, as long as they give the solicitor sufficient information to understand the nature of the offence and why the man is suspected.
This reflects thePolice and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A. Thereis no strict requirement to disclose particular items.
A man is arrested in connection with an assault occasioning actually bodily harm (‘ABH’). At the police station he decides he does not need a solicitor as he has been interviewed by the police on many previous occasions. Prior to the interview he is told by the officer in the case that if he confesses then they will be able to start the interview quicker and get him out on bail, otherwise he will have to hang around in the cell all day. On this basis the man decides to make a full confession. He is charged with ABH and instructs a solicitor to represent him at court.
Which of these statements best summarises the solicitor’s options regarding the man’s confession?
The solicitor can make an application to exclude the confession for oppression.
The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings.
The solicitor can make an application to exclude the confession for unreliability.
The solicitor can make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings.
The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings.
It seems that the confession was obtained as the result of something said or done which renders the confession unreliable (section 76(2) Police and Criminal Evidence Act 1984). However, the defence would have to show a causal link between the officer in the case’s comments and the confession. The defence can also make an application on the basis that admitting the confession would have an adverse effect on the fairness of the proceedings (section 78).
The police are called to a supermarket where staff have witnessed a man shoplifting. He is arrested for theft and taken to the police station where his detention is authorised by the Custody Officer. The man’s solicitor arrives at the police station and he asks her how long he can be held in custody.
Which of the following most accurately explains how long the man can be held in custody?
You can be kept in custody up to 24 hours from your arrival at the police station. If the Investigating Officer requires further time his next step will be to make an application to the magistrates’ court.
You can be kept in custody for up to 24 hours from your arrest. You must be charged or released before that time.
You can be kept in custody for up to 24 hours from your arrival at the police station after which you will be charged.
You can be kept in custody for up to 24 hours from your arrival at the police station. If the Investigating Officer requires further time to prepare for interview then he can extend detention for a further period of 12 hours.
You can be kept in custody for up to 24 hours from your arrival at the police station. You must be charged or released before that time.
You can be kept in custody for up to 24 hours from your arrival at the police station. You must be charged or released before that time.
Correct
Section 41 Police and Criminal Evidence Act (PACE) 1984 states a suspect can be kept in custody up to 24 hours from the ‘relevant time’ before being charged. The relevant time is arrival at the police station which is marked on the custody record, which the solicitor should have checked on arrival.
The other options, while plausible are incorrect.
· The ‘relevant time’ does not start from the time the suspect is arrested.
· It is not clear as yet whether the suspect will be charged.
· The Investigating Officer cannot extend detention on their own. An extension under s 42 PACE 1984 must be authorised by an unconnected officer of at least superintendent rank. The superintendent or above can only grant the extension if they have reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning. The investigation must be being conducted diligently and expeditiously.
· The police can seek an extension of a further 12 hours under s 42 PACE 1984. That requires the authorisation of a superintendent or above. Only if they needed additional time beyond that would they be able to apply to the magistrates’ court under s 43 PACE 1984 (for an additional 36 hours). There is no suggestion here that further powers of detention under PACE would be required.
A suspect was arrested on suspicion of murder (an indictable only offence). Before the 24 hour time limit on detention has expired, a superintendent properly authorised continued detention for a further 12 hours. However, the investigating officer still requires additional time to diligently and expeditiously complete enquiries.
Which of the following best explains the next step the investigating officer should take?
The investigating officer should seek further authorisation from a superintendent for a period of further detention. The maximum period they can apply for in this instance is an additional 12 hours.
The investigating officer should apply to the magistrates’ court for a warrant of further detention. The maximum period they can apply for in the first instance is an additional 24 hours.
The investigating officer should apply to the magistrates’ court for a warrant of further detention. The maximum period they can apply for in the first instance is an additional 12 hours.
The investigating officer should apply to the magistrates’ court for a warrant of further detention. The maximum period they can apply for in the first instance is an additional 36 hours.
The investigating officer should seek authorisation from an inspector for a period of further detention. The maximum period they can apply for in this instance is an additional 12 hours.
The investigating officer should apply to the magistrates’ court for a warrant of further detention. The maximum period they can apply for in the first instance is an additional 36 hours.
Correct
This answer best reflects the position in relation to detention time limits and their extension in certain circumstances in sections 42- 44 Police and Criminal Evidence Act 1984. The maximum period of detention without charge is 24 hours from ‘the relevant time’ (when the suspect arrives at the police station). As the offence being investigated is indictable (murder is indictable only), the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.
The warrant may authorise continued detention for a further 36 hours on a first application and an additional 24 hours (up to a maximum of 96 hours) on a second application.
Whilst other answer options might sound plausible, they are each incorrect as they state:
- the investigating officer should seek authorisation from a superintendent or inspector rather than the magistrates’ court; and/ or
- the incorrect maximum period the investigating officer can apply for in the first instance.
A woman is arrested for fraud (an indictable offence). At the police station she is informed of her right to independent legal advice by the Custody Officer, and she asks for her usual solicitor to be contacted. She is put in a cell and later the Investigating Officer comes to speak with her. He says that they are delaying her access to legal advice because they have reasonable grounds to believe that information will be passed from the solicitor to other individuals who suspected of committing fraud but not yet arrested.
Which of the following statements best describes whether the woman’s access to legal advice can be delayed?
Her access to legal advice can only be delayed with written authority from an officer of at least inspector rank
Her access to legal advice can only be delayed with written authority from an officer of at least superintendent rank. She cannot be interviewed before access to legal advice takes place.
Her access to legal advice can be delayed with written authority from an officer of at least superintendent rank
Her access to a legal advice can be delayed indefinitely with written authority from an officer of at least superintendent rank
Her access to legal advice can never be delayed
Her access to legal advice can be delayed with written authority from an officer of at least superintendent rank
Correct
The woman is in detention for an indictable offence. The superintendent has reasonable grounds to believe that the exercise of the right will lead to at least the alerting of other people suspected of committing an indictable offence but not yet arrested for it. In order to delay the right in accordance with s 58 Police and Criminal Evidence Act 1984 (and Code of Practice C Annex B), the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of superintendent.
The other options, while plausible are incorrect:
· Access to legal advice can be delayed in limited circumstances
· Access to legal advice cannot be delayed indefinitely in any circumstances
· Access to legal advice can only be delayed with authority from an officer of at least superintendent rank
· A suspect can be interviewed before they have access to legal advice, though it can have major implications for any evidence obtained against the woman as a result.
incorrect
Her access to legal advice can only be delayed with written authority from an officer of at least superintendent rank. She cannot be interviewed before access to legal advice takes place.
She can be interviewed before access to legal advice takes place. However, it can have major implications for any evidence obtained against the woman as a result. Review your materials on a suspect’s rights and in particular the right to legal advice.
A woman is arrested at home in relation to a complex fraud. Her husband is present at home when she is arrested and is clearly upset. The arresting officer says, ‘You’d better confess to this, or I’ll be coming back here and will arrest your husband as well’. Her interview iscarried out under caution and she makes a full confession.
Which of the following statements best describes how the woman could seek to exclude her confession?
She cannot make any application to exclude her confession as her interview is carried out under caution.
She can make an application to exclude the confession for oppression and because of the adverse effect it would have on the fairness of proceedings.
She can make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings.
She can make an application to exclude the confession for unreliability because of the threat to her husband and because of the adverse effect it would have on the fairness of proceedings.
She can make an application to exclude the confession for unreliability because of the threat to her husband. She cannot make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings, as section 78 Police and Criminal Evidence Act 1984 does not deal specifically with confession evidence.
She can make an application to exclude the confession for unreliability because of the threat to her husband and because of the adverse effect it would have on the fairness of proceedings.
Section 76(2) Police and Criminal Evidence Act 1984 allows the court to exclude the confession where something said or done renders it unreliable where it caused the confession. Section 78 grants the court the discretion to exclude any evidence (including a confession) where it would have such an adverse effect on the fairness of proceedings.
The other options while plausible are incorrect:
· There is no suggestion here of any oppression (such as threats of violence) so she could not make an application under s 76 on that basis.
· She would most likely make an application under s 78 but would also make an application under s 76 which deals specifically with confessions.
· She can make an application under s 78 which can be used to exclude any evidence on which the prosecution seeks to rely (including confession evidence).
· It is not the case that a confession is admissible simply because a correct caution has been given. An application can still be made under s 76 and/or s 78.
incorrect
She can make an application to exclude the confession for unreliability because of the threat to her husband. She cannot make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings, as section 78 Police and Criminal Evidence Act 1984 does not deal specifically with confession evidence.
Section 78 Police and Criminal Evidence Act 1984 can be used to exclude any evidence on which the prosecution seeks to rely (including confession evidence). Please review your materials on interviews and in particular, the exclusion of confessions.
A 15 year old boy is involved in a fight outside his school. His mother is present during the fight as she had arranged to meet the boy from school. She splits up the fight and then stays with her son while the police are called. He is arrested for assault occasioning actual bodily harm and taken to the police station. His mother attends the police station as well, where she is informed that her son requires an appropriate adult. The police station is familiar to her as she has been arrested herself on numerous occasions. The boy’s mother cannot act as an appropriate adult.
Which of the following best explains why she cannot act as an appropriate adult?
She does not have a duty of confidentiality to her son
She is a witness to the offence
She is not a solicitor
She is his mother
She has previous convictions
She is a witness to the offence
She cannot act as an appropriate adult in these circumstances because she is a witness to the offence.
The other options while plausible are incorrect:
· A parent can act as appropriate adult. In fact this is often the case.
· Previous convictions do not bar a suitable individual from acting an appropriate adult.
· An appropriate adult does not need to be legally qualified.
· It is correct that she does not have a duty of confidentiality to her son but it is not the case that this would bar her from acting as an appropriate adult.
Which of these best describes the role of a solicitor or accredited representative at the police station?
To ensure that no court of law is misled.
To advise the suspect properly and in accordance with the law.
To assist in the smooth running of the criminal justice system.
To ensure that justice is done.
To protect and advance the legal rights of their clients.
To protect and advance the legal rights of their clients.
Correct
This reflects the role of the solicitor as set out in the Police and Criminal Evidence Act 1984 Code of Practice C Notes for Guidance paragraph 6D.
Which of these represent a passive rather than active defence approach?
Making representations to the custody officer regarding release on bail
Intervening during the interview where questioning is inappropriate
Challenging the investigating officer over lack of disclosure
Sit by and take notes
Raising breaches of PACE with the custody officer
Sit by and take notes
Correct
While comprehensive notetaking is an important aspect of police station practice, active defence requires more than this.
In which of these circumstances might a vulnerable suspect at the police station be interviewed without an appropriate adult?
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.
A superintendent determines that an urgent interview is required.
An inspector determines an urgent interview is required because delay would lead to interference with evidence.
A superintendent determines that an urgent interview is required to ensure that the suspect is not left waiting too long, which might be a detriment to their health.
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.
Correct
The superintendent must also be satisfied that it would not significantly harm the person’s physical or mental state.
The other options were incorrect because:
· The rank for authorisation is superintendent or above.
· It must be the case that in the reasonable opinion of the superintendent delay would lead to one of the specified outcomes in PACE Code of Practice C.
· Ensuring that the suspect is not left waiting too long, which might be a detriment to their health is not a valid reason for an urgent interview with a vulnerable person without an appropriate adult.
In which of these circumstances might a vulnerable suspect at the police station be interviewed without an appropriate adult?
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.
A superintendent determines that an urgent interview is required.
An inspector determines an urgent interview is required because delay would lead to interference with evidence.
A superintendent determines that an urgent interview is required to ensure that the suspect is not left waiting too long, which might be a detriment to their health.
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.
Correct
The superintendent must also be satisfied that it would not significantly harm the person’s physical or mental state.
The other options were incorrect because:
· The rank for authorisation is superintendent or above.
· It must be the case that in the reasonable opinion of the superintendent delay would lead to one of the specified outcomes in PACE Code of Practice C.
· Ensuring that the suspect is not left waiting too long, which might be a detriment to their health is not a valid reason for an urgent interview with a vulnerable person without an appropriate adult.
Which of these statements best reflects the approach you should adopt when taking your client’s instructions prior to interview?
You should explain the allegations against your client, but you should not take any detailed instructions at this stage. Full instructions should be taken after the interview.
You should allow your client to give a full account of their version of events before comparing that version of with the disclosure that has been supplied by the police.
You should explain the allegations against your client and allow them to provide you with a full account of their version of events. If they admit the offence then you should advise them to answer questions.
You should explain the allegations against your client then allow them to provide you with a full account of their version of events.
You should explain the allegations against your client then on that basis of those allegations set out how you think the client should approach the interview.
You should explain the allegations against your client then allow them to provide you with a full account of their version of events.
Your clients full account (including whether they accept any involvement) is vitally important when it comes to advising which option to take in interview.
The other options were incorrect because:
· You must take detailed instructions from your client in advance of the interview in order that you can properly advise and protect their interests.
· You must give your client the opportunity to give you their account before you can advise on which option to follow at interview. For example, your client might have a defence that you are not aware of.
· You are not testing the strength of your client’s version (this will be done in interview and possibly later in court). You need to provide them with all the information that you have available in order that they can respond to the allegations.
· While inferences might be drawn, your client is under no obligation to answer questions just because they have admitted an offence to their solicitor. In fact, it may be in the client’s best interests to go ‘no comment’ if the police have insufficient evidence to prove the offence.
Which of these is not a relevant factor when advising a client on their options for interview?
Disclosure
Previous convictions
Strength of the evidence
Client’s account
Physical state of the client
Previous convictions
This might be a factor in relation to bail and sentencing but it is not a factor when advising a client on their options for interview.
The other answers were all relevant factors when advising a client on their options for interview:
· The client’s account- For example, does the suspect admit the offence, which might lead to a ‘no comment’ interview?
· Strength of the evidence- For example, if the evidence is weak then answering questions might cause your client to incriminate themselves.
· Physical state of the client- The court might not draw and adverse inference where a defendant was advised not to answer questions because of their physical state.
· Disclosure- Where a court considers that insufficient disclosure was provided prior to interview then it may decide not to draw an adverse inference.
Which of these statements about mixed interviews is correct?
The court cannot draw adverse inferences where there were ‘no comment’ responses.
Mixed interviews are not lawful, and a suspect must select an option for interview.
A transcript of the interview will be read in court which will include both answers to questions and ‘no comment’ responses.
Mixed interviews give the suspect the ability to control the interview and not incriminate themselves.
Mixed interviews are not admissible in court as they contain ‘no comment’ responses.
A transcript of the interview will be read in court which will include both answers to questions and ‘no comment’ responses.
Unlike a ‘no comment’ interview, a transcript of a mixed interview is included as evidence. The impact of such a mixed response on the tribunals of fact (the jury or magistrates) is easy to imagine.
The other options were incorrect:
· While not very helpful to a suspect, they are still entitled to reply to some questions and not others.
· If the suspect wishes to remain in control then a ‘no comment’ interview or pre-prepared statement makes far more sense.
· As with interviews where questions are answered the mixed interview transcript would be read in court.
· The court can still draw adverse inferences for those issues where a response was not given.
Which of the following is necessary in order for the court to draw an adverse inference under section 34 Criminal Justice and Public Order Act 1994 that the defendant relies on a fact that they did not offer at the time of questioning?
A special warning must have been given
The suspect must be cautioned
The defendant must plead guilty
The suspect must be cautioned
Correct
The caution explains the possibility of an adverse inference being drawn.
The other options were incorrect because:
· There must be a trial otherwise any adverse inferences are irrelevant. If the case does not proceed to trial, or the defendant pleads guilty there will be no adverse inference.
· An ordinary language ‘special warning’ is only required for inferences under s 36 ors 37.
Which of the following correctly summarises the effect of an adverse inference?
No adverse inference can be drawn as every suspect has a right to silence
No adverse inference can be drawn where the suspect has followed legal advice
Any suspect can be convicted solely on the basis of an adverse inference
No suspect can be convicted solely on the basis of an adverse inference
No suspect can be convicted solely on the basis of an adverse inference
Correct
This is the safeguard within section 38 Criminal Justice and Public Order Act 1994.
The other options are incorrect because:
· No adverse inference can be drawn where the suspect has not been allowed access to legal advice. However, an adverse inference can be drawn even where the suspect has followed legal advice to give a no comment interview.
· The basic principle is that every suspect has a right to silence. However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial.
A suspect is arrested in connection with an assault in a pub. He is arrested at the pub immediately after the alleged attack and is taken straight to the police station. In interview the suspect does not answer questions.
Which of the below statements is an example of why a section 36 adverse inference might later be drawn at trial?
He does not raise the fact that he was defending himself when he committed the attack
He does not account for the blood stain on his clothing
He does not explain why he was in the pub at that time
He does not explain why he shouted “I’m glad I hit him” on arrest
He has exercised his right to silence
He does not account for the blood stain on his clothing
Correct
He has failed to account for an object, substance or mark (in this case a mark) found on him at the time of arrest.
The other options were incorrect because:
· An inference might be drawn under section 37 because he failed to account for his presence in the pub on his arrest.
· If he fails to explain why he shouted “I’m glad I hit him” on arrest or raise self-defence in interview then later does at trial then the court might be entitled to draw adverse inferences under section 34.
· He is entitled to exercise his right to silence, but this does not necessarily cause an inference to be drawn under section 36.
When the suspect disputes being the person the eye-witness claims to have seen and the witness expresses an ability to identify the suspect or there is a reasonable chance of the eye-witness being able to identify the suspect the police must attempt an identification procedure.
Which of the following is the procedure which should be attempted first?
Confrontation
Video identification
Identification parade
Group identification
Video identification
If an identification procedure is to be held, the suspect shall initially be invited to take part in a video identification unless: (a) a video identification is not practicable; or (b) an identification parade is both practicable and more suitable than a video identification.
In usual circumstances, who has responsibility for arranging the identification procedure?
An officer with no connection to the case of at least the rank of inspector
The custody officer
The officer in the case
An officer with no connection to the case of at least the rank of sergeant
An officer with no connection to the case of at least the rank of inspector
The arrangements for, and conduct of, the eye-witness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’).
Who generally provides advice on charge?
Custody Officer
Investigating Officer
Crown Prosecution Service
Charging Officer
Crown Prosecution Service
Correct
Correct. The Crown Prosecution Service provide advice on charge in all but the most minor cases.
What is the time limit for charging or laying an information for a summary only offence?
24 months
3 months
6 months
1 month
12 months
6 months
Correct. Six months from the date of alleged commission of the offence.
Which method of commencing criminal proceedings would a person use to bring a private prosecution?
Laying an information
Arrest and charge
Written charge and requisition
Laying an information
Correct
Correct. Information alleging an offence is served on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.
What is the classification of the offence of burglary?
Indictable only
Summary
Either-way
Either-way
Correct
This applies to section 9(1)(a) and9(1)(b) Theft Act 1968.
What is the classification of the offence of attempted aggravated criminal damage?
Either-way
Indictable only
Summary
Indictable only
Aggravated criminal damage is an indictable only offence. Attempts to commit indictable only offences will be triable only on indictment.
What is the classification of the offence of inflicting grievous bodily harm or wounding contrary to section 20 Offences Against the Person Act 1861?
Either-way
Summary
Indictable only
Either-way
By contrast, the offence of wounding or causing grievous bodily harm with intent contrary to section 18 Offences Against the Person Act 1861 is an indictable only offence.
What is the classification of the offence of simple criminal damage which is £5,000 or less?
Summary
Either-way
Indictable only
Summary
If the criminal damage is £5,000 or less it will be treated as a summary offence. If the criminal damage exceeds £5,000 it is an either-way offence.
What is the classification of the offence of robbery?
Either-way
Summary
Indictable only
Indictable only
Indictable only
What is the classification of the offences of assault and battery?
Summary
Indictable only
Either-way
summary
In addition, criminal damage where the value is £5,000 or less is treated as a summary offence.
What is the classification of the offence of theft?
Indictable only
Either-way
Summary
Either-way
Low value shoplifting, where the value does not exceed £200, is now said to be a summary only offence. However, the statute still allows an adult defendant to elect trial in the Crown Court, so you should therefore continue to treat shoplifting as a theft which is an either-way offence.
Your client has been arrested for attacking her ex-partner. Neighbours had heard shouting from inside her partner’s house and the police had arrested her on the street just outside the house. She was found to have a metal bar in her bag.
In interview she refused to answer questions, but was later charged with grievous bodily harm contrary to section 20 Offences Against the Person Act 1861.
Which of these statements best sets out the situation regarding the adverse inferences a court may draw?
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession.
A court could draw an adverse inference for her failure to account for her presence outside her partner’s house but not the metal bar as that was in her bag.
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession, if she later relies on that information at trial.
A court could draw an adverse inference for her failure to account for having a metal bar in her possession but not for her presence as she was outside the house.
A court could draw adverse inferences if she was given a special warning and then later relies on something she failed to mention in interview.
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession.
Correct
A court might draw inferences under s.36 Criminal Justice and Public Order Act 1994 (‘CJPOA’) (object, substance or mark) or s.37 CJPOA (presence on arrest at a particular place). Such inferences arise as soon as she fails to account for her presence or the metal bar.
The other options, while plausible, are incorrect:
Unlike s.34 CJPOA, inferences under s.36 CJPOA or s.37 CJPOA do not require that the defendant fail to mention something they later rely on.
Inferences can be drawn here for both presence and the possession of the metal bar, the metal bar in her bag is still in her possession.
Inferences can be drawn here for both presence and the possession of the metal bar, being outside the property would still count as being present.
A special warning is required, but there is no suggested one was not given here. In any event s.36 CJPOA and s.37 CJPOA do not require later reliance on something.
A woman is arrested in connection with a street robbery. She is arrested close to the location of the robbery and is found in possession of a balaclava. The victim of the robbery cannot identify the person who robbed her (she was wearing a balaclava), and there is no medical or forensic evidence. The woman denies the offence in consultation with her solicitor then she decides to go ‘no comment’ in interview. During the interview she is given a special caution and fails to account for either why she was near the location of the robbery or why she was in possession of a balaclava.
Which of these statements best sets out the woman’s position in terms of adverse inferences?
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava and the matter will progress to trial.
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava. However, it is highly unlikely that the matter will progress to trial if no further evidence comes to light.
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava, so it is likely she would be found guilty at trial given the overwhelming evidence against her.
Adverse inferences are unlikely to be drawn from her failure to account for her location or possession of the balaclava if the matter reaches trial.
Adverse inferences can be drawn from her failure to mention something that she then relies on at trial.
Correct
Correct. A defendant cannot be convicted on the basis of adverse inferences alone. In this case there would appear to be no evidence against the suspect, so it will not progress to trial.
The other answers, while plausible, are incorrect:
Adverse inferences will not be drawn if the matter does not progress to trial, based on the evidence available at present, it is incorrect to state that the matter will progress to trial.
These adverse inferences would not be sufficient ‘overwhelming evidence’ to convict the defendant. A defendant cannot be convicted on inferences alone (s.38 Criminal Justice and Public Order Act 1994 (‘CJPOA’)).
She has not failed to mention something she will later rely on in court (s.34 CJPOA). Inferences under ss. 36 and 37 trigger the possibility of inferences from the moment the suspect fails to account (unlike s.34).
If the matter does reach trial (if new evidence comes to like) then inferences would be drawn under s.36 and s.37 CJPOA.
A man is arrested for burglary. He is found to have a valuable ornament belonging to the victim in his possession. In consultation he informs you that he had been threatened that he would be killed if he did not commit the burglary. He is frightened of the gang that threatened him and they have made it clear that he will be harmed if he speaks to the police about them. He is willing to answer questions and admit he stole the ornament from the victim’s house, but he doesn’t want to talk about the gang, or the threats made against him. He wants to know what will happen if he fails to mention the fact that he was forced into it.
Which of these statements best reflects the advice that you should give him about the possibility of adverse inferences if he raises the defence of duress at trial?
The court might draw an inference that he failed to account for the ornament being in his possession.
The court will not draw any inference as long as he can explain why he did not mention the issue of duress in interview.
The court might draw an inference because he failed to account for his location when arrested.
The court will not allow the defendant to raise the defence as he failed to mention it when questioned.
The court might draw an inference that he invented the defence between interview and trial.
The court might draw an inference that he invented the defence between interview and trial.
A court can draw a ‘proper’ inference as they see approriate and this would appear to be a proper inference in the circumstances.
The other answers, while plausible, are incorrect:
A defendant will be cross examined as to why they did not mention something they later relied on, but no explanation will avoid a proper inference being drawn.
He admits the burglary and possession of the ornament, so there is no suggestion that there would be an inference under s.36.
The defendant would not be prohibited from raising a defence in any circumstances.
There is no suggestion that s.37 CJPOA would apply here.
You are representing a client at a police station. You advised your client to answer ‘no comment’ to the questions asked. During the interview the interviewing officer mentions some evidence that you had not been made aware of during disclosure. You request that the interview is paused so that you can take instructions. The officer says that if you ask for the interview to be paused you will be excluded from the interview.
Which of these statements best explains whether you can be excluded from the interview?
You cannot be excluded from the interview as you were not preventing or obstructing questions being put to your client.
You can be excluded from the interview due to your advice to your client to answer ‘no comment’ to all questions.
You can be excluded from the interview as you have interrupted the police interview after it has started.
You cannot be excluded from the interview as the interviewing officer is not a rank of superintendent.
You can be excluded from the interview if the police arrange for another solicitor to attend the police station to advise the client properly.
You cannot be excluded from the interview as you were not preventing or obstructing questions being put to your client.
Correct
This answer is correct because preventing or obstructing questions being put to your client are the only grounds for a solicitor’s exclusion which has not happened here. Asking for the interview to be paused so that you can take instructions from the client on new evidence is the right course of action here.
The other options, while plausible, are incorrect.
It does not matter if the interviewing officer is not a superintendent. It is merely that a superintendent must authorise you being excluded from the interview.
You can’t be excluded for advising no comment.
A solicitor needs to play an active role in advising their client at the police station which sometimes will mean interrupting/ pausing the interview to take instructions.
Another solicitor should only be requested where the original solicitor has already been excluded which has not happened here. The police cannot just arrange for another solicitor if they do not like the advice the solicitor is giving the client.
Your client is under arrest for an alleged assault which you are told took place last night on a dark street. The victim says he only got a brief glimpse of his assailant and says he is only fairly sure he could identify him. A police officer who has dealt with your client before has however recognised your client from CCTV of the incident. Your client is under arrest and has told police in interview that although he was at the scene he was not the alleged attacker.
Do the police have to carry out an ID procedure in these circumstances?
No. The police need not conduct an identification procedure because it is not disputed that the suspect is already known to the police officer.
Yes. The police must conduct an identification procedure because the suspect denies the offence.
Yes. The police must conduct an identification procedure because the suspect denies the offence and the eye-witness has expressed an ability to identify the suspect
No. The police need not conduct an identification procedure because the suspect has been recognised and it would serve no useful purpose.
Yes. The police must conduct an identification procedure because the eye-witness has expressed an ability to identify the suspect.
Yes. The police must conduct an identification procedure because the suspect denies the offence and the eye-witness has expressed an ability to identify the suspect
This answer is the best answer because the police must conduct an identification procedure where the suspect denies the offence and AND the eye-witness has expressed an ability to identify the suspect as here.
The other options, while plausible, are incorrect.
An identification procedure would serve a useful purpose even though the suspect has been recognised as there is an eye-witness who says he is fairly sure he could identify his attacker.
An identification procedure would serve a useful purpose in these circumstances as your client, while admitting presence at the scene, denies being the attacker and the eye-witness says he is fairly sure he could identify his attacker.
Here the relevant person is the eye-witness, who does not know your client, rather than the police officer.
Whilst the suspect denies the offence, the ID procedure is necessary as there is an eye-witness who says he is fairly sure he could identify his attacker.
Which of the following is not required to be included in the initial details served on a defendant who is on bail at the time of the first hearing?
Any account given by the defendant in interview
The preparation for effective trial form
Any written statements and exhibits that are available and material
A summary of the circumstances of the offence
The defendant’s criminal record
The preparation for effective trial form
Correct
This is not required under Part 8 Criminal Procedure Rules. If the defendant pleads not guilty then this will be completed as part of the ongoing case management.
Where will an adult defendant charged with robbery make their first appearance, have their trial and be sentenced?
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.
In the Crown Court for first appearance, trial and sentencing.
In a magistrates’ court for first appearance, trial and sentencing.
In a magistrates’ court for first appearance and trial, the Crown Court for sentencing.
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.
This is the correct procedure for indictable only offences such as robbery.
Which of the following will not take place at a first hearing in relation to an offence of assault occasioning actual bodily harm?
Legal aid
Indication of plea
Consideration of bail
Trial
Trial
Correct
If the defendant indicates not guilty then any trial will take place on a later date.
Which of the following best explains where an adult defendant charged with fraud could potentially make their first appearance, have their trial and be sentenced?
In a magistrates’ court for first appearance and either a magistrates’ court or the Crown Court for trial and sentencing.
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.
In a magistrates’ court for first appearance, trial and sentencing.
In a magistrates’ court for first appearance and trial, the Crown Court for sentencing.
In a magistrates’ court for first appearance and either a magistrates’ court or the Crown Court for trial and sentencing.
Fraud is an either-way offence, so after first appearance in a magistrates’ court, the court for trial and sentencing will depend on a variety of factors, the magistrates’ accepting jurisdiction, the defendant’s election and the magistrates’ sentencing powers.
Which of the following best summarises when a defendant should be committed to the Crown Court for sentence?
When the defendant is charged with an indictable only offence.
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 6 months imprisonment will be insufficient
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 12 months imprisonment will be insufficient.
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 12 months imprisonment will be insufficient.
A committal for sentence is only an option for an either-way offence. For either-way offences the maximum sentence is 12 months in the magistrates’ court.
incorrect
When the defendant is charged with an indictable only offence.
A committal for sentence is only an option for an either-way offence.
Which of the following is not an appropriate consideration for the magistrates in deciding allocation for an either-way offence?
The case is of unusual legal, procedural or factual complexity
Any personal mitigation
There is no power to commit for sentence after trial
Whether the defendant has any previous convictions
There is no power to commit for sentence after trial
Correct
In general, either-way offences should be tried summarily unless:
· the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
· for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.
Before making a decision on allocation, the court shall give the prosecution an opportunity to inform the court of the accused’s previous convictions (if any).
In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.
incorrect
Whether the defendant has any previous convictions
Incorrect
This is an appropriate consideration. Before making a decision on allocation, the court shall give the prosecution an opportunity to inform the court of the accused’s previous convictions (if any)
Any personal mitigation
This is an appropriate consideration. In general, either-way offences should be tried summarily unless the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea.
Defendants routinely misuse the terms bail and remand. Which one of the following is the best meaning of remand?
Where the defendant waits in custody for the next court hearing.
Where the defendant is obliged to come back to court to continue with the case.
Where the defendant is presented to court, and the court cannot conclude the case in one hearing.
Where the defendant is on bail until the next court hearing.
Where the defendant is obliged to come back to court to continue with the case.
This is the correct answer. The defendant may serve the remand in custody or in the community on bail.
Who applies for the defendant to be remanded into custody?
The jury
The Judge
The defendant
The prosecution
The prosecution
This is the correct answer. It is for the prosecution to apply to have the defendant remanded into custody if that is its desire by presenting objections to bail.
Who can grant bail in murder cases?
The prosecution
The Magistrates’ Court
The defence
The Judge in the Crown Court
The jury
The Judge in the Crown Court
This is the correct answer. In other cases, the first decision in relation to bail is taken by the magistrates’ court.
The presumption in favour of bail is found in which section of the Bail Act 1976?
Section 2
Section 4
Section 3
Section 1
Section 4
Correct
This is the correct answer. The court must presume that a defendant is entitled to bail, and it is only if an objection is properly made out that bail can be refused.
The presumption in favour of bail applies in which of the following situations?
To defendants being committed for sentence from the Magistrates’ Court to the Crown Court
On conviction whilst reports are prepared pending sentence.
On appeal from conviction or sentence
On conviction whilst reports are prepared pending sentence.
This is the correct answer. Although the concerns about a defendant absconding may be more serious following a conviction.
incorrect
To defendants being committed for sentence from the Magistrates’ Court to the Crown Court
This is the incorrect answer. While bail can be granted, the presumption does not apply. Review your presumption of bail materials to get this answer correct next time.
Which of the following is one of the ‘big three’ grounds for objecting to bail?
The court has insufficient information to deal with the issue of bail
A remand in custody would be for the defendant’s own protection
The defendant is already serving a sentence in custody
Fail to surrender to custody
Fail to surrender to custody
This is the correct answer. This is one of the three primary grounds for objecting to bail for ‘indictable’ offences.
Which of the following is a ground for objection to bail rather than a factor to be taken into consideration?
Character of the defendant, his antecedents, associations and community ties
Commit further offences
Nature and seriousness of the offence and the likely sentence
Strength of the evidence
Bail record in the past
Commit further offences
This is the correct answer. This is one of the three primary grounds for objecting to bail for ‘indictable’ offences.
If the court was concerned that the defendant would leave town and fail to attend the next court hearing, which of the following would be the most appropriate condition to impose?
Residence at a given address
Reporting to the police station at given times
Surety
Restriction on who the defendant might have contact with during bail
Security
Reporting to the police station at given times
This is the best answer as this condition will allow the prosecution to ensure the defendant is still in town.
How many bail conditions can the court impose on a defendant?
Two conditions
Just one
No limit
No limit
This is the correct answer. The court can impose ‘such conditions as appear necessary’ meaning technically that there is no limit to the conditions that a court could choose to impose.
Who can make an application to vary bail conditions?
The prosecution only
The defence only
The prosecution or the defence
The prosecution or the defence
Correct
This is the correct answer. The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence).
In the context of bail, which of the following is an offence?
Not surrendering to custody
The Bail Act 1976 s.7
Breaching a bail condition
Not surrendering to custody
Correct
This is the correct answer. This is an offence punishable by up to three months’ imprisonment in the magistrates’ court or 12 months on indictment.
Under the Bail Act 1976 s.7, officers do not have the power to arrest…?
Those in breach of a bail condition
Those who will breach a bail condition sometime in the future
Those about to be in breach of a bail condition
Those who will breach a bail condition sometime in the future
Correct
This is the correct answer. The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so.
Which of the following represents the maximum sentence for not surrendering to custody?
3 months imprisonment
12 months imprisonment
No sentence, as failing to surrender to custody is not an offence
12 months imprisonment
Correct
This is the correct answer. This is an offence punishable by up to three months’ imprisonment in the magistrates’ court or 12 months on indictment.
When does the custody time limit for a defendant awaiting trial in the magistrates’ court expire?
When a jury is sworn
When the court begins hearing evidence from the defence.
When the court begins hearing evidence from the prosecution.
When the court begins hearing evidence from the prosecution.
Correct
This is the correct answer. This is considered the start of the trial for the purposes of the expiry of the custody time limit.
Within how many days of the first appearance must a trial take place in the Crown Court, if the prosecution have not successfully applied to extend the custody time limit?
182 days
56 days
28 days
182 days, less any days spent in custody prior to the case being sent to the Crown Court
182 days, less any days spent in custody prior to the case being sent to the Crown Court
Correct
This is the correct answer. Usually the defendant will not spend any days in custody prior to the case being sent to the Crown Court.
To successfully apply to extend the custody time limit, the prosecution must be able to show which of the following?
There is good and sufficient cause to have the defendant further remanded into custody.
It has acted with all due diligence and expedition.
That there was a good reason for the trial not taking place within the custody time limit.
It has acted with all due diligence and expedition and that there is good and sufficient cause to have the defendant further remanded into custody.
It has acted with all due diligence and expedition and that there is good and sufficient cause to have the defendant further remanded into custody.
Correct
This is the correct answer. If the limits expire, then the defendant will be released, unless the prosecution successfully applies to extend the time limits.
If a defendant is remanded into custody at their first hearing and their trial will take place in the magistrates’ court, their first remand must be for no longer than how many days?
8 clear days
56 days
28 days
8 clear days
This is the correct answer. Second appearance (in person or via live link) must be within eight days of the first appearance. D can make another bail application.
How many total attempts does a defendant have at applying for bail as a general rule, if the trial is to be held at the magistrates’ court?
Three
Two
One
Three
Correct
This is the correct answer. The defendant can have two attempts at getting bail at the magistrates’ court, and one attempt on appeal to the Crown Court.
In the usual case, if the defendant is having a trial at the magistrates’ court and is unsuccessful in applying for bail at first appearance, when can the issue of bail be raised for a second time?
One week
48 hours
24 hours
One week
This is the correct answer. Once the defendant has had both applications, the defendant must secure a ‘certificate of full argument’ from the magistrates’ court before then appealing to the Crown Court, if he wishes to do so.
Which court hears prosecution appeals against granting of bail in the magistrates’ court?
High Court
Court of Appeal
Crown Court
Magistrates’ court
Crown Court
This is the correct answer. The appeal will be heard within 48 hours, excluding weekends.
Which court hears prosecution appeals against granting of bail in the Crown Court?
Crown Court
Court of Appeal
Magistrates’ court
High Court
High Court
This is the correct answer. The appeal will be heard within 48 hours, excluding weekends.
How quickly is a prosecution appeal against bail heard by the court?
Within 24 hours, excluding weekends
Within 48, including weekends
Within 24 hours, including weekends
Within 48 hours, excluding weekends
Within 48 hours, excluding weekends
This is the correct answer. This applies where the magistrates’ court and Crown court grant bail.
You are representing a man at the police station who is being investigated for causing grievous bodily harm with intent. He asks you which court will deal with his case if he is charged.
Which of these statements is the most accurate advice for your client?
Your first hearing will be at the Crown Court because of the seriousness of your offence.
Your first hearing will be at the magistrates’ court but your case will be tried at the Crown Court.
Your first hearing will be at the Crown Court, which will decide whether or not to accept jurisdiction of your case.
Your first hearing will be at the magistrates’ court where you will be tried, but it is likely your case would be sent to the Crown Court for sentencing.
Your first hearing will be at the magistrates’ court where the magistrates will determine whether or not to accept jurisdiction of your matter.
Your first hearing will be at the magistrates’ court but your case will be tried at the Crown Court.
Correct
Correct. S.18 GBH is an indictable only offence, but the first hearing would still be at the magistrates’ court.
The other answers are not correct:
First hearings for any indictable only offence are always at the magistrates’ court.
This is not an either way offence, so there will be no plea before venue and allocation hearing.
This is not an either way offence so the magistrates would never try the case before remitting to the Crown Court for sentence.
The first hearing would be at the magistrates and the Crown Court does not determine whether or not to accept jurisdiction.
Your client is charged with theft and bailed to appear at the magistrates’ court the following day. She intends to plead guilty to the offence and wants to know what will happen.
Which of these statements best summarises what will happen at her first hearing?
The court will send the matter straight to the Crown Court without taking a plea.
The court will decide whether their sentencing powers are sufficient. If they determine their powers are not sufficient then they will commit to the Crown Court for sentence.
The court will decide whether their sentencing powers are sufficient. If they determine their powers are sufficient then she will be given the option to elect Crown Court for sentencing.
The court will take the guilty plea and then commit the case to the Crown Court for sentence. The Crown Court can only sentence her to the maximum sentence available in the magistrates’ court.
The court will decide whether to allocate the case to the magistrates’ court or the Crown Court. In doing this they take into account the allocation guideline.
The court will decide whether their sentencing powers are sufficient. If they determine their powers are not sufficient then they will commit to the Crown Court for sentence.
Correct. The court would have to determine whether their sentencing powers of up to 6 months’ imprisonment per offence and/or unlimited fine per offence would be sufficient. The Crown Court would have any sentence available for the offence of theft.
The other options are incorrect:
This question is not about allocation. Allocation guidelines are only considered when a defendant pleads NOT GUILTY.
This is not an indictable only offence so will not be sent directly to the Crown Court.
The Court would not automatically commit for sentence, and if it decided to then the Crown Court would not be limited in its sentencing powers.
A defendant cannot elect Crown Court for sentencing. (And why would they?).
Your client is charged with multiple thefts from various shops and offices. He denies all the offences. Following interview he was kept in police custody until the following day when he was produced at the magistrates’ court. Your application for bail on that occasion was unsuccessful and he was remanded in custody. At the second hearing a week later you make a further application for bail but this is also refused. After the hearing you go and speak to your client in the court cells and explain what is going to happen next.
Which of these statements best sets out your client’s options with regard to bail?
He can appeal the bail decision to the Crown Court. If he is unsuccessful he will not be able to make a further bail application unless there is a change in his circumstances.
He can make a further application for bail at the start of his trial.
He cannot appeal against the bail decision but he could make a further application in the magistrates’ court if there is a change in circumstances.
He cannot appeal the bail decision to the Crown Court. He has made both his applications for bail in the magistrates’ court and therefore cannot apply for bail again.
He can appeal the decision to the Crown Court if there have been changes in his circumstances since the last application before the magistrates’.
He can appeal the bail decision to the Crown Court. If he is unsuccessful he will not be able to make a further bail application unless there is a change in his circumstances.
Correct
Correct. A defendant has two attempts at bail in the magistrates’ court after which they must secure a ‘certificate of full argument’ from the magistrates before appealing. The appeal is heard by the Crown Court one business day after receipt of the appeal notice.
While plausible the other options are incorrect:
It is correct he only has 2 attempts in the magistrates’ court but he can also appeal to the Crown Court.
He cannot make a further application at the start of trial as he has made 2 applications already.
He can (as of right) appeal to the Crown Court.
He doesn’t require a change of circumstances to appeal to the Crown Court.
Your client is making her first appearance at the magistrates’ court in relation to the offence of grievous bodily harm. She is concerned that she will be refused bail because the last time she was at court (in relation to a common assault charge) she failed to attend court for sentencing and was arrested the following day. She failed to attend court due to the death of a family member. She would like to know what will happen in court when the magistrates deal with the issue of bail.
Which of these statements best sets out your advice to your client about what will happen at court in terms of bail?
She will be granted bail because her previous fail to surrender relates to common assault which is a summary only offence.
She does not have a right to bail because of the previous breach of bail conditions, but you can still make representations on her behalf.
She will be refused bail because of the previous breach of bail conditions.
She has a right to bail but the prosecution are likely to object on the basis of her previous convictions.
She has a right to bail but the prosecution are likely to object on the basis that she will fail to surrender to custody if released on bail because of her previous fail to surrender.
She has a right to bail but the prosecution are likely to object on the basis that she will fail to surrender to custody if released on bail because of her previous fail to surrender.
Correct
Correct. She has the right to bail but one of the grounds on which the prosecution will object is that she would fail to surrender on the basis of her previous bail record.
The other answers are plausible but not correct:
Previous convictions can be used as evidence of substantiating grounds on which she should be remanded in custody, but they are not grounds on their own.
She retains the right the bail under s. 4 of the Bail Act 1976.
She has breached bail conditions before, but that does not automatically mean she will be refused bail. The court will hear representations from prosecution and defence.
In this case it is the breach of her bail conditions that is relevant, not the nature of the offence. Common assault is summary only but she still failed to surrender to the court at the appointed time.
Your client is due to appear before the magistrates’ court having been charged with theft of a bottle of gin from the supermarket. Your client denies the offence and intends to plead not guilty. Your client has eight recent convictions for theft, three of which are thefts at the same supermarket and one previous conviction for failing to surrender 10 years ago. Your client lives with their mother. The prosecution object to bail on grounds that your client will commit further offences while on bail.
Which of the following would be the most appropriate bail conditions to put forward for your client?
A condition of residence at her mother’s address and not to enter the supermarket.
A condition of residence at her mother’s address and for your client to surrender their passport.
A condition of residence at her mother’s address, not to enter the supermarket and to pay a surety.
A condition of residence at her mother’s address and a night time curfew.
A condition of residence at her mother’s address, reporting at the police station daily and a night time curfew.
A condition of residence at her mother’s address and not to enter the supermarket.
Correct
Correct. Your client has a bail address (their mother’s address) therefore it would be appropriate to put forward a condition of residence. Such a condition can be imposed to address any concerns the court may have of your client failing to surrender. Even though the prosecution do not object to bail on the grounds of failing to surrender it would strengthen your argument for granting your client bail if the condition was put forward. Your client has recent previous convictions for committing the same offence at the same location. It would therefore be appropriate to put forward a condition that your client does not enter the supermarket to reduce the risk of your client committing further offences on bail.
The other answers while plausible are incorrect.
The prosecution does not object to bail on grounds that the client will fail to surrender and therefore is would not be proportionate to impose a daily reporting condition which reduces the risk of absconding. A curfew would also not be appropriate as there is nothing to suggest that the client has a pattern of offending at night.
Even though it would be appropriate to put forward a condition of residence it would not be relevant for your client to surrender their passport. There is no information to suggest that your client will leave the country and abscond.
Even though it would be appropriate to put forward a condition of residence and for your client not to enter the supermarket, it would not be relevant for your client to pay a surety as the prosecution are objecting on the basis that she would commit further offences.
Even though it would be appropriate to put forward a condition of residence a curfew would not be relevant as there is nothing to suggest that the client has a pattern of offending at night.
Incorrect
A condition of residence at her mother’s address, not to enter the supermarket and to pay a surety.
Incorrect. It would not be relevant for your client to pay a surety as the prosecution are objecting to bail on the basis that she would commit further offences not fail to surrender. Please review your materials on bail and in particular on bail conditions.
Which of the following will always take place prior to a trial in the Crown Court?
Preliminary hearing
Plea and trial preparation hearing
Further hearings for further applications
Plea and trial preparation hearing
Correct
Correct. A plea and trial preparation hearing (PTPH) must happen in all cases. Further applications may be dealt with on the day of the trial, before it begins.
A defendant is found unfit to plead and a jury finds the defendant has committed the actus reus of the offence at trial. Which of the following sentences is not available to the judge?
A supervision order
An absolute discharge
Custodial sentence
A hospital order
Custodial sentence
Correct
Correct. A defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to: an absolute discharge, supervision order or a hospital order.
When would it be inappropriate to make an application to vary or discharge a ruling made at a pre-trial hearing?
Something was not brought to the attention of the court at the time of the ruling which could justify a variation or discharge
To make the same argument on the facts before a different judge
There has been a material change in circumstances
To make the same argument on the facts before a different judge
Correct
Correct. An application to vary or discharge a pre-trial ruling can only be made if either: (a) there has been a material change in circumstances; or (b) something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.
Which of the following is likely to be unused material that is not relied on by the prosecution?
Statements from the prosecution witnesses
The indictment
The defendant’s record of tapes interview
Disciplinary findings against police officers
Disciplinary findings against police officers
Correct
Correct. This will form part of the unused material that is not being relied upon by the prosecution. Unused material will include other items such as: statements from witnesses that the prosecution is not relying upon at trial to prove its case and records of previous convictions of prosecution witnesses.
Who is responsible for ensuring that proper procedures are in place for recording information and retaining records of information and other material during an investigation?
The investigator
The officer in charge of the investigation
The disclosure officer
The officer in charge of the investigation
Correct
Correct. The officer in charge of the investigation is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.
incorrect
The disclosure officer
Incorrect
Incorrect. The disclosure officer is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request. Review your materials on disclosure, in particular the investigation stage.
Where the defendant is convicted and given a custodial sentence, how long does the duty to retain material last?
Until six months from the date of conviction
At least until the defendant is released from custody
One year from the date of conviction
Six years from the date of conviction
At least until the defendant is released from custody
Correct
Correct. Where the defendant is convicted, relevant material must be retained at least until the defendant is released from custody (or discharged from hospital).
incorrect
Until six months from the date of conviction
Incorrect
Incorrect. In cases which did not result in a custodial sentence or a hospital order, relevant material must be retained at until six months from the date of conviction. Review your materials on disclosure, in particular the duty to retain and record relevant material.
Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.
What is the name of the document which is a written statement served on the prosecution and the Court, setting out the nature of the accused defence, the matters of fact on which D takes issue with the prosecution and why, any points of law D wishes to take including authority in support and the particulars of any alibi witness?
Defence duty to serve material helpful to the prosecution
Defendant’s proof of evidence
Notice of Intention to Call Defence Witnesses
Defence statement
Defence statement
Correct
Correct. The contents of defence statements are set out in Criminal Procedure and Investigations Act (CPIA) 1996, s.6A.
When should a defendant serve a defence statement on the Crown Court and the prosecution?
Within 10 business days of the date when the prosecution complies with its duty of initial disclosure or purports to do so
The defendant is under no obligation to serve a defence statement in the Crown Court
Within 28 days of the date when the prosecution complies with its duty of initial disclosure or purports to do so
Within 28 days of the date when the prosecution complies with its duty of initial disclosure or purports to do so
Correct
Correct. This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.
Which of the following is a consequence of failing to serve a defence statement in a magistrates’ court?
The defendant will not be able to make an application for specific disclosure
The judge may draw such adverse inferences as appear proper
The prosecution or co-defendant may comment on such a failure
The defendant will not be able to make an application for specific disclosure
Correct. Although serving a defence statement in a magistrates’ court is not compulsory, the other consequence is that the prosecution will not have the opportunity to review disclosure in light of the issues.
When does the continuing duty of disclosure by the prosecution last until?
Up to the close of the prosecution case at trial
Until the defendant is convicted, acquitted or the prosecutor decides not to proceed
Until it has carried out a review following service of the defence statement
Until the defendant is convicted, acquitted or the prosecutor decides not to proceed
Correct
Correct. There is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.
It has will become clear during an investigation that material which is relevant to the prosecution case may be held by a financial institution. What is the appropriate step to take to ensure production of the material if it is not forthcoming?
The prosecution can make a public interest immunity application
The prosecution can make an application for specific disclosure
The prosecution can seek a summons
The prosecution can seek a summons
Correct
Correct. If there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.
incorrect
The prosecution can make a public interest immunity application
Incorrect
Incorrect. While this is a prosecution application, it relates to withholding material in the belief that to do so would give rise to a real risk of serious prejudice to an important public interest. Review your materials on disclosure, in particular third-party disclosure.
The prosecution can make an application for specific disclosure
Incorrect. This is a defence application. Review your materials on disclosure, in particular third-party disclosure.
Which of the following is not a consequence of a failure of disclosure by the prosecution?
An application to stay the indictment
Exclusion of evidence
Conviction being quashed on appeal
The jury may draw such adverse inferences as appear proper
Wasted costs order
The jury may draw such adverse inferences as appear proper
Correct
Correct. While the potential consequences of failure to disclose by the prosecution are serious, this is not one of them. Drawing such inferences as appear proper is a consequence for the defendant regarding D’s failure to serve a defence statement in the Crown Court.
Which of the following is best definition of evidence?
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness
Material used by the police to prove their case against the defendant
Material collected by the police at a crime scene
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness
Correct
Correct. This is a common and basic definition of evidence, implying that it can be used by either party.
Which of the following is best definition of evidence?
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness
Material used by the police to prove their case against the defendant
Material collected by the police at a crime scene
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness
Correct
Correct. This is a common and basic definition of evidence, implying that it can be used by either party.
What are the facts in issue?
The relevant issues that are admissible for the court to consider.
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused.
The facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.
Correct
Correct. The facts in issue are essential the elements of the offence and any defence raised by the defence.
How might a fact be proved in court?
Jury notice
Defence advocate says so
Prosecutor says so
Judicial notice
Judicial notice
Correct. The other ways in which a fact might be proved in court are live oral testimony, s.9 Criminal Justice Act 1967 read statement, section 10 Criminal Justice Act 1967 agreed facts.
Which of the following uses the Galbraith test?
Application to exclude a confession
Abuse of process application
Submission of no case to answer
Application to exclude evidence under the common law
Submission of no case to answer
Correct
Correct. Submissions of no case to answer are only available during trial and generally at the close of the prosecution case- the Galbraith test is used.
Who can make an application under s.78 PACE 1984 to exclude evidence?
The prosecution in relation to evidence on which the defence proposes to rely
The defendant in relation to evidence on which the prosecution proposes to rely
A co-defendant in relation to evidence on which a defendant proposes to rely
The defendant in relation to evidence on which the prosecution proposes to rely
Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.
What would be the appropriate application to make where the police have deliberately destroyed evidence that would have assisted the defence?
Abuse of process application
Submission of no case to answer
Application for dismissal
Abuse of process application
Correct
Correct. An application to stay the indictment, in this case because continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.
To which of the following types of evidence does a s.78 application relate?
Exclusion for oppression
Exclusion for unreliability
Exclusion of unfair evidence
Correct
Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.
To which of the following types of evidence does a s.78 application relate?
Exclusion for oppression
Exclusion for unreliability
Exclusion of unfair evidence
Exclusion of unfair evidence
Correct
Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.
Who can make an application under s.78 PACE 1984 to exclude evidence?
A co-defendant in relation to evidence on which a defendant proposes to rely
The defendant in relation to evidence on which the prosecution proposes to rely
The prosecution in relation to evidence on which the defence proposes to rely
The defendant in relation to evidence on which the prosecution proposes to rely
Correct
Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.
If evidence has been irregularly obtained for example in breach of PACE or the Codes of Practice does this render it inadmissible per se under s.78 PACE 1984?
Yes
No
No
Correct
Correct. Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Which of the following does not fall under the definition of a confession?
Unequivocal confessions of guilt
Wholly exculpatory statements
A nod
Partly inculpatory and partly exculpatory
Wholly exculpatory statements
Correct
Correct. This does not fall within the definition of a confession. Words such as ‘it was nothing to do with me’.
Which of the following will not be a thing said or done for the purpose of proving that a defendant’s confession is unreliable under s.76(2)(b) PACE 1984?
The suspect making an admission because they consider this is likely to get them bail
The suspect making an admission following a promise they will get bail if they do
The suspect being interviewed without an appropriate adult when one is necessary
The suspect making an admission under threat that other family members will be arrested unless they do so
The suspect making an admission because they consider this is likely to get them bail
Correct
Correct. This is not a thing said or done for the purpose of proving that a defendant’s confession is unreliable under s.76(2)(b) PACE 1984. The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).
In relation to excluded confessions, which of the following is incorrect?
The prosecution can use part of the confession to show the speech, writing or expressions of the accused
The prosecution can rely on facts discovered as a result of the confession
The prosecution can suggest to the jury that facts were discovered by reason of something said by the defendant
The prosecution can suggest to the jury that facts were discovered by reason of something said by the defendant
Correct
Correct. To do so would be to circumvent the exclusion of the confession itself. It would be unacceptable for the prosecution to say, for example, ‘members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’
Can the defence seek to exclude evidence of a confession under s.76 and s.78 PACE 1984?
No
Yes
Yes
Correct
Correct. It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78. Making an application to exclude evidence of a confession under s.76 does not preclude the defence from also making an application to exclude evidence of a confession under s.78.
In principle, does s.76 ors.78 PACE 1984 exert a broader protective sweep for the defendant?
s.78
s.76
s.78
Correct
Correct. Section 78 PACE allows a court to examine a case from a perspective of overall fairness, including oppression or unreliability engaged under s.76 PACE 1984.
If evidence has been irregularly obtained for example in breach of PACE or the Codes of Practice does this render it inadmissible per se under s.78 PACE 1984?
Yes
No
No
Correct
Correct. Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
You are representing a man for theft of a credit card. It is alleged that the man stole the credit card from his friend. Part of the prosecution evidence against your client is a statement from a police officer stating that he arrested the man and found he was in possession of the credit card. Your client confirms to you that he was in possession of the credit card but that his friend had lent it to him.
Which of these statements is the best advice to your client about the police officer’s statement?
The fact that the credit card does not belong to your client can be agreed between the parties.
You will be able cross examine the police officer about your client’s possession of the credit card in court.
The officer will have to attend court to read out his statement otherwise it will not be admissible.
The prosecution will want to agree the witness statement, but you will not agree as you don’t want to accept the police officer’s account.
The witness statement should be agreed so it will be read out in court.
The witness statement should be agreed so it will be read out in court.
Correct
Correct. Your client does not challenge the witness’s account and therefore the statement can be agreed between the parties under the Criminal Justice Act 1967 s.9. The statement will be read out in court and given the same weight as if the police officer had attended and given oral evidence.
The other options while plausible are incorrect:
The police officer’s statement does not deal with the ownership of the credit card. The fact that it doesn’t belong to your client might be agreed as a fact between the parties under CJA 1967, s.10.
There is no need to challenge the officer’s statement. Your client does not disagree with the account put forward by the officer and therefore it can be agreed under s.9.
As per the above, you are able to accept the statement as true as per CJA 1967, s.9.
If the statement is agreed under s.9 the witness does NOT have to attend to read the statement. It can be read by the prosecutor.
incorrect
The fact that the credit card does not belong to your client can be agreed between the parties.
Incorrect
Incorrect. This might be the case, but it is not relevant to the police officer’s statement. Please review your materials on the basic principles of evidence.
You will be able cross examine the police officer about your client’s possession of the credit card in court.
Incorrect
Incorrect. There would not appear to be any useful line of cross examination here. Please review your materials on the basic principles of evidence.
The prosecution will want to agree the witness statement, but you will not agree as you don’t want to accept the police officer’s account.
Incorrect
Incorrect. There is no reason why you would not agree the statement. Please review your materials on the basic principles of evidence.
The fact that the credit card does not belong to your client can be agreed between the parties.
Incorrect. This might be the case, but it is not relevant to the police officer’s statement. Please review your materials on the basic principles of evidence.
Your client is facing trial for the possession of an offensive weapon, namely a knife, that was found in his possession during a search. The search was not conducted properly and in accordance with the relevant police codes of practice.
Which of these best summarises the position regarding whether you can seek to exclude the knife from evidence?
You can seek to exclude the knife from evidence and it will automatically be excluded on the basis that there has been a breach of police codes of practice.
You cannot seek to exclude the knife from evidence because it is fundamental to the prosecution case.
You cannot seek to exclude the knife from evidence because breaches of police codes of practice are irrelevant to the status of the evidence.
You can seek to exclude the knife from evidence on the basis that the evidence would have such an adverse effect on the fairness of proceedings.
You can seek to exclude the knife from evidence and it is for the prosecution to prove beyond reasonable doubt that the exclusion of the knife would have an adverse effect on the fairness of proceedings.
You can seek to exclude the knife from evidence on the basis that the evidence would have such an adverse effect on the fairness of proceedings.
Correct. You can make an application under s.78 (1) of PACE. The court has the discretion to exclude the evidence or not.
The other answers while plausible are incorrect:
Circumstances of obtaining the evidence are relevant under s.78 PACE.
The importance to the prosecution of that piece of evidence is not relevant to s.78.
There is no burden of proof. The court will have the discretion to decide whether or not to exclude under s.78.
Evidence is not excluded automatically for breach of police codes of practice.
Your client is a 19 year-old woman with learning difficulties, who was interviewed by the police following her arrest for murder. The police refused to give her access to a solicitor. In the interview, she confessed to having taken part in the killing and is now charged with murder. The prosecution seek to rely on the confession as part of the evidence.
You are seeking to exclude the evidence from the trial. What is the basis of your application?
You rely on s.78 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence because it was made as a consequence of actions that rendered it unreliable
You rely on s.78 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
You rely on s.76 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
You rely on s.78 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence as it was obtained by oppression.
You rely on s.76 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence as it was obtained by oppression.
You rely on s.78 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Correct
Correct. The court should refuse to allow the evidence as the admission of an interview without a solicitor where the suspect has learning difficulties could have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The other answers while plausible are incorrect:
There is no evidence of oppression under s.76
The wording of the statute is incorrect in the remaining answers.
Your client attends your office in advance of his Plea and Trial Preparation Hearing (PTPH) at the Crown Court. He is facing six charges of burglary to which he will plead not guilty. He has various questions about what will happen with his case. In particular, he wants to know whether his previous convictions will be admitted as evidence, whether one of the witnesses who is only 13 years old will be allowed to give evidence via videolink, and what will happen in relation to his police interview during which officers repeatedly stated he was ‘talking nonsense’.
Which of these statements is the most accurate summary of what will happen at the PTPH in relation to your client’s questions?
A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will hear argument from prosecution and defence as to whether the 13 year old witness should be granted special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.
A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.
A timetable will not be set as the prosecution will make a bad character application at trial. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.
A timetable will be set for the defence to make an application to object to the bad character evidence being admitted at trial and the prosecution reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.
A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will hear argument from prosecution and defence as to whether the 13 year old witness should be granted special measures. The prosecution will be given a timetable by which to serve a ‘final’ edited version of the police interview transcript.
A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.
Correct
Correct. Timetables will be set for bad character applications as well as agreement of interview transcript. Because the witness is under 18 she automatically qualifies for special measures.
The other answers while plausible are incorrect:
Bad character applications would not be made at trial. An application must be served and responded to as per the court’s standard directions. A timetable will be set for this at the PTPH.
The witness is 13 years old so no argument would need to be heard regarding special measures as they would automatically qualify.
The prosecution and defence will agree and edited version of the police interview transcript.
Bad character evidence is inadmissible and the prosecution must apply to admit the evidence.
Your client has confessed to theft but claims he was threatened in his cell by a police officer just prior to his police station interview. He was unrepresented at interview and agreed to everything put to him including his confession that he committed a theft. He now wants to plead not guilty at his first appearance before the magistrates’ court and want to know what will happen in relation to his confession.
Which of these best sets out the law in relation to his confession and the possible exclusion of his confession.
The court will not allow the evidence of the confession unless the prosecution can prove on the balance of probabilities that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings.
The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings.
The court will not allow the evidence of the confession if we can prove on the balance of probabilities that the confession was obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings
The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression.
The court will not allow the evidence if we seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings.
The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings.
Correct
Correct. An application would be made under s.76(2)(a) of PACE. Further, an application under s.78 could also be made.
The other answer while plausible are incorrect:
The defence do NOT need to prove that the confession was obtained by oppression.
The defence can make an application under s.76 as well as s.78 PACE.
The defence can make an application under s.78 as well as s.76 PACE.
The prosecution must refute any claim under s.76 beyond reasonable doubt.
Where will the legal burden of proof normally lie in a criminal case?
Defence
Prosecution
Judge
Prosecution
Correct
Correct. The general rule is that the prosecution bears the legal burden of proving all the elements of the offence necessary to establish guilt- the facts in issue (Woolmington v DPP [1935] AC 462). There are exceptions to this general rule.
What is the standard of proof that is normally required in a criminal case?
Balance of probabilities
So that a jury are sure of guilt / Beyond reasonable doubt
Beyond doubt
So that a jury are sure of guilt / Beyond reasonable doubt
Correct
Correct. The prosecution must prove all the elements of the offence/ all the facts in issue beyond reasonable doubt, so that the tribunal of fact is satisfied so that it is sure (Woolmington v DPP [1935] AC 462).
Which of the following best describes the evidential burden?
It is the burden to adduce evidence to satisfy the judge that an issue should be left to the tribunal of fact
It is the burden to adduce evidence
It is a form of standard of proof
It is a form of burden of proof
It is the burden to adduce evidence to satisfy the judge that an issue should be left to the tribunal of fact
Correct
Correct. The evidential burden is neither a form of burden of proof nor does it have to be established to any particular standard.
Which case provided guidelines about how disputed evidence of eye-witness identification should be treated with caution?
R v Twist
R v Turnbull
R v Vye
R v Turnbull
Correct
Extensive psychological research has highlighted the errors eyewitnesses make when they observe, interpret and recall information. An honest witness may be a very convincing witness but may still be mistaken. More than one witness can be honest and convincing but mistaken.
Prosecution counsel concedes that individual identifications of the defendant are of poor quality. However, prosecution counsel draws the judge’s attention to the fact that there are multiple identifications of the defendant by different witnesses and relies on this in arguing that the defence’s submission of no case to answer must fail.
Is prosecution counsel correct?
No- the prosecution counsel has conceded that the individual identifications are of poor quality
Yes- it is permissible for two or more disputed identifications to be treated as mutually supportive of each other
Yes- identification by two or more witnesses carries more weight than one
No- the prosecution counsel has conceded that the individual identifications are of poor quality
It is permissible for two or more disputed identifications to be treated as mutually supportive of each other. Identification by two witnesses carries more weight than one. However, each separate identification must be of a quality that can safely be left to the jury to assess. If prosecution counsel is conceding that all of the identifications are of poor quality, they cannot be viewed as being mutually supportive.
incorrect
Yes- it is permissible for two or more disputed identifications to be treated as mutually supportive of each other
The explanation is correct in part but the conclusion is not. Prosecution counsel is not correct. Review your visual identification materials and think about the quality of evidence that can be put before a jury.
The judge agrees with the defence advocate that the ID evidence in the case is of poor quality.
Which of the following would not carry much weight as the judge decided whether on to accede to the defence submission of no case to answer?
Whether there is other evidence to support the correctness of the identification
Whether there is sufficient evidence upon which a jury properly directed could convict
Whether the witnesses seem honest and convincing
Whether the witnesses seem honest and convincing
Correct
Honest and convincing witnesses can still be mistaken. The identification evidence can have weaknesses and deficiencies but there must be sufficient evidence upon which a jury properly directed could convict. The judge will consider if there is other evidence to support the correctness of the identification.
What is the standard time for any defence skeleton argument in support of an application to exclude evidence of a confession in the magistrates’ court?
10 business days before trial
At the Plea and Trial Preparation Hearing
At the Further Case Management Hearing
10 business days before trial
Correct
Correct. This time limit is contained on the magistrates’ court ‘Preparation for Effective Trial’ form and not within any specific criminal procedure rule, although Criminal Procedure Rule 1.1 contains the ‘overriding objective’ which includes dealing with cases efficiently and expeditiously.
At what point in the trial process will an application under s.76 PACE 1984 be dealt with in the magistrates’ court?
As a preliminary issue
During the trial itself
At a pre-trial hearing listed specifically for this purpose
As a preliminary issue
Correct
Correct. In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.
If the evidence founding the application is in dispute, when do judges have a discretion to hear all the evidence then decide on the admissibility of evidence?
An application under s.76 or both s.76 & s.78 is made in the Crown Court
An application under s.78 is made in a magistrates’ court
An application under s.76 orboths.76 &s.78 is made in a magistrates’ court
An application under s.78 is made in a magistrates’ court
Correct. If the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.
Which of the following would be included in a prosecution opening speech?
Evidence that will be challenged in a legal argument with the defence
Overly emotive language describing the crime
The counts the defendant faces
A detailed consideration of the law
The counts the defendant faces
The prosecutor will usually also hand to the jury a copy of the indictment.
Which of the following best describes the test for a submission of no case to answer?
The court may acquit on the ground that the prosecution evidence is weak as it depends on a witness who may be unreliable
The court may acquit on the ground that the defence evidence is sufficient for any reasonable court
The court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict
The court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict
Correct
This reflects the test in the Criminal Procedure Rules and the principles set out in R v Galbraith.
Which of the following is a matter for the judge to direct the jury on?
Whether the defendant intended to cause the injury
If the defendant struck the complainant
What the meaning of intention is
Whether the defendant used reasonable force in self defence
What the meaning of intention is
This is a matter for the judge to direct the jury on
Who takes the decision about whether the defendant will give evidence or not at trial?
The defendant taking into consideration the advice of any legal representative the defendant has
The defendant
The judge
The defendant’s legal representative
The defendant taking into consideration the advice of any legal representative the defendant has
Correct
If the defendant is not legally represented the judge will explain the defendant’s right to give or not give evidence to allow an informed choice
Which of the following would not form part of the judges’ summing up?
How to return a majority verdict
Elect a foreman
Burden and standard of proof
The jury’s function
Summary of the evidence
How to return a majority verdict
When the jury first retires the jury must be directed that their verdict must be unanimous (in respect of each count and each defendant). If a time were to come when the court could accept a majority verdict the jury would be invited to come back into the court room and would be given further directions.
incorrect
Elect a foreman
Incorrect
The jury will be told to select one of their number to act as the foreman (who can be a person of any gender).
Summary of the evidence
Incorrect
The judge should provide:
- a reminder of the issues;
- a summary of the nature of the evidence relating to each issue;
- a balanced account of the points raised by the parties; and
- any outstanding directions.
It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.
Which of the following best reflects the running order of a Crown Court trial?
Prosecution opening speech, judge’s preliminary instructions to the jury, prosecution evidence, defence evidence, prosecution closing speech, defence closing speech, judge’s summing up, jury retire, verdict.
Jury bailiffs sworn, judge’s preliminary instructions to the jury, prosecution opening speech, defence opening speech, prosecution evidence, defence evidence, right to give evidence and adverse inferences, submission of no case to answer, prosecution closing speech, defence closing speech, judge’s summing up, jury retire, verdict.
Judge’s preliminary instructions to the jury, defence opening speech, legal arguments, prosecution evidence, submission of no case to answer, right to give evidence and adverse inferences, defence evidence, prosecution closing speech, judge’s summing up, jury retire, verdict.
Jury selection and swearing in the jury, judge’s preliminary instructions to the juryprosecution opening speech, prosecution evidence, defence evidence, prosecution closing speech, defence closing speech, judge’s summing up, jury retire, verdict.
Jury selection and swearing in the jury, judge’s preliminary instructions to the juryprosecution opening speech, prosecution evidence, defence evidence, prosecution closing speech, defence closing speech, judge’s summing up, jury retire, verdict.
Correct
This best reflects Crown Court trial procedure inCriminal Procedure Rules Part 25.
Where can the definition of bad character be found?
Section 108 Criminal Justice Act 2003
Section 107 Criminal Justice Act 2003
Section 101 Criminal Justice Act 2003
Section 98 Criminal Justice Act 2003
Section 98 Criminal Justice Act 2003
Correct
Correct. Section 98 states:
‘References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which-
has to do with the alleged facts of the offence with which the defendant is charged, or
is evidence of misconduct in connection with the investigation or prosecution of that offence.’
‘Misconduct’, according to section 112, means: ‘the commission of an offence or other reprehensible behaviour’.
Which of the following are inadmissible?
Behaviour short of a conviction
A party’s previous convictions
Irrelevant behaviour
Convictions committed after the offence being tried
Irrelevant behaviour
Correct
Correct. For bad character to be admissible, it must be behaviour which falls within s.98(a) or (b) and it must be relevant.
A defendant attempts to intimidate a witness. Will the prosecution have to make a bad character application to admit this conduct?
No
Depends on the circumstances
Yes
Correct
Correct. This is an example of misconduct connected with the investigation or prosecution of the offence, so not bad character evidence under the definition in s.98 Criminal Justice Act 2003.
Which of the following is incorrect regarding the Crown use of bad character?
The Crown may rely on the circumstances of the conviction to suggest this is how the defendant does a particular crime
The Crown may rely on the fact of the previous conviction to suggest that the defendant has done the crime before and has done it again
The Crown may rely on reprehensible behaviour such as in an assault case, evidence of the police being called out for allegations of D’s violence on the same V on four occasions even if none resulted in charge or conviction
The Crown may rely on bad character as conclusive proof the defendant is guilty
The Crown may rely on bad character as conclusive proof the defendant is guilty
Correct
Previous convictions and reprehensible behaviour demonstrate bad character but are not conclusive proof the defendant is guilty. All of the other options are examples of the uses the Crown may have for bad character. However, bad character can be admitted for any relevant purpose. Typically this means that it goes to an issue in the case, or is evidence bearing on credibility. The judge should direct the jury on the purpose for which the evidence may/may not be used (ie, propensity or credibility), and give a direction that:
(i) warns the jury of the danger of placing undue reliance on previous convictions;
(ii) Stresses that bad character cannot bolster a weak case, or prejudice a jury against the defendant;
(iii) Emphasises that the jury should not infer guilty from the existence of convictions.
incorrect
The Crown may rely on the circumstances of the conviction to suggest this is how the defendant does a particular crime
Incorrect
The Crown uses bad character in this way. The specifics, if disputed, can be done by adducing evidence to prove the facts, or by using business documents under s.117 CJA 2003. Think about the relationship between bad character and the defendant’s likelihood to have committed the crime.
Which of the following gateways do not require leave of the court to admit defendant bad character evidence?
Section 101(1)(b): Evidence adduced by the defendant
Section 101(1)(c): Important explanatory evidence
Section 101(1)(d): Important matter in issue between the defendant and the prosecution
Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
Section 101(1)(f): Correcting a false impression
Section 101(1)(b): Evidence adduced by the defendant
Correct
Correct. There is no need to make an application to the court for leave to adduce evidence through this gateway. There is also no need to make an application to the court for leave to adduce evidence under section 101(1)(a)- agreement of the parties. The remainder of the gateways of admissibility (s.101(1)(c)-(g)) require an application to the court for leave to adduce evidence.
Which of the following gateways to admissibility of bad character can only be used by the defence as opposed to the prosecution?
Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
Section 101(1)(d): Important matter in issue between the defendant and the prosecution
Section 101(1)(a): Agreement of the parties
Section 101(1)(c): Important explanatory evidence
Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
Correct
Correct. By definition evidence that comes in through this gateway is not prosecution evidence and s.78 PACE Act 1984 does not apply to it.
When would a bad character application not be heard?
After the prosecution have called all of their evidence
Before a witness gives evidence, if it is non-defendant bad character
At the first hearing in an indictable only offence
Before the jury are sworn in, if it is the defendant’s bad character
Before cross-examination or re-examination, if it arose as a result of examination in chief or cross-examination
At the first hearing in an indictable only offence
Correct
Correct. The first hearing for an indictable only offence is when the case is sent to the Crown Court and no plea is taken. While the timing of a bad character application is a matter of judgment, the other options are common timings.
What rules must be complied with to make a bad character application?
CrimPr Part 22
CrimPR Part 20
CrimPR Part 21
CrimPR Part 21
Correct
Correct. The party seeking to introduce evidence of bad character must serve a notice on the court officer and each other party. The court has an unfettered discretion to vary the notice requirements.
How can the defence prevent the prosecution from being able to elicit bad character evidence under s.101(c), important explanatory evidence?
The admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (s.101(3))
There is no way to prevent it
The judge should exercise discretion under s.78 PACE 1984 to exclude the evidence
The judge should exercise discretion under s.78 PACE 1984 to exclude the evidence
Correct
Correct. The Criminal Justice Act 2003 does not contain a specific method of excluding bad character evidence under this gateway. The defence either have to persuade the court that the statutory test is not met or that the judge should exercise their discretion under s.78 PACE 1984 to exclude the evidence.
When is the most common time to deal with an application to exclude evidence or introduce inadmissible evidence?
At the Plea and Trial Preparation Hearing (PTPH)
On the day of trial, before the trial starts
At a hearing between PTPH and trial
On the day of trial, before the trial starts
Correct
Correct. While the application can be dealt with at the PTPH, at a hearing on a day at some point between PTPH and trial or on the day of trial before the trial starts, the latter is most common.
Which of the following types of special measures are available for witnesses who are eligible due to being in fear?
Giving evidence in private
Aids to communication
Testifying through an intermediary
Giving evidence in private
Correct
Correct. Testifying through an intermediary and aids to communication are not available for witnesses who are eligible for special measures due to being in fear.
In which of the following circumstances is a judge likely to reject a defendant’s application to change plea?
From guilty to not guilty when the defendant has been properly represented
From not guilty to guilty
From guilty to not guilty when the defence can show that the prosecution has no evidence of an essential ingredient of the offence
From guilty to not guilty when the defendant has been properly represented
Correct
Correct. While the judge has a discretion in this circumstance, a court would invariably reject the defendant’s application to change plea as proper advice has been given to the defendant, no undue pressure has been exerted on the defendant and the defendant’s plea was unequivocal.
D is charged with GBH on A. The offence is said to have taken place because D believed that A was responsible for implicating him in a drugs case for which he was sentenced to a custodial sentence. When D was released from prison, it is alleged D went round to A’s house (wearing facial coverings) and attacked A by way of retaliation. D denies the offence. No one else is alleged to have been involved.
What is the most likely course of action the prosecution would take in relation to the D’s character?
Make an application to adduce the evidence as important explanatory evidence to be admitted through the s.101(1)(c) gateway.
Make no application because the judge will not allow the evidence as it would have an adverse effect on the fairness of the proceedings for the jury to hear that the defendant had been in prison.
Make an application to adduce the evidence to show a propensity to commit offences of the type charged.
Make an application to adduce the evidence under s 101(1)( e )as it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.
No application is needed because the previous relationship between the men is part of the facts of this case hence outside the s.98 definition of bad character evidence.
Make an application to adduce the evidence as important explanatory evidence to be admitted through the s.101(1)(c) gateway.
This is the best answer. This is evidence without which the jury will find it difficult to understand the rest of the case. These parties have a history, which provides a context for this alleged offence. Without it, the jury would be presented with an incomplete picture. Review your materials on defendant bad character, in particular explanatory evidence.
