CLP Flashcards

Question

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

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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).

Answer 7

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.

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

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.

Answer 12

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.

Answer 13

Sit by and take notes Correct While comprehensive notetaking is an important aspect of police station practice, active defence requires more than this.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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’).

Answer 24

Crown Prosecution Service Correct Correct. The Crown Prosecution Service provide advice on charge in all but the most minor cases.

Answer 25

6 months Correct. Six months from the date of alleged commission of the offence.

Answer 26

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.

Answer 27

Either-way Correct This applies to section 9(1)(a) and9(1)(b) Theft Act 1968.

Answer 28

Indictable only Aggravated criminal damage is an indictable only offence. Attempts to commit indictable only offences will be triable only on indictment.

Answer 29

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.

Answer 30

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.

Answer 31

Indictable only Indictable only

Answer 32

summary In addition, criminal damage where the value is £5,000 or less is treated as a summary offence.

Answer 33

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.

Answer 34

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.

Answer 35

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.

Answer 36

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.

Answer 37

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.

Answer 38

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.

Answer 39

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.

Answer 40

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.

Answer 41

Trial Correct If the defendant indicates not guilty then any trial will take place on a later date.

Answer 42

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.

Answer 43

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.

Answer 44

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.

Answer 45

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.

Answer 46

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.

Answer 47

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.

Answer 48

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.

Answer 49

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.

Answer 50

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.

Answer 51

Commit further offences This is the correct answer. This is one of the three primary grounds for objecting to bail for 'indictable' offences.

Answer 52

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.

Answer 53

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.

Answer 54

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).

Answer 55

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.

Answer 56

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.

Answer 57

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.

Answer 58

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.

Answer 59

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.

Answer 60

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.

Answer 61

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.

Answer 62

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.

Answer 63

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.

Answer 64

Crown Court This is the correct answer. The appeal will be heard within 48 hours, excluding weekends.

Answer 65

High Court This is the correct answer. The appeal will be heard within 48 hours, excluding weekends.

Answer 66

Within 48 hours, excluding weekends This is the correct answer. This applies where the magistrates’ court and Crown court grant bail.

Answer 67

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.

Answer 68

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?).

Answer 69

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.

Answer 70

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.

Answer 71

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.

Answer 72

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.

Answer 73

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.

Answer 74

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.

Answer 75

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.

Answer 76

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.

Answer 77

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.

Answer 78

Defence statement Correct Correct. The contents of defence statements are set out in Criminal Procedure and Investigations Act (CPIA) 1996, s.6A.

Answer 79

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.

Answer 80

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.

Answer 81

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.

Answer 82

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.

Answer 83

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.

Answer 84

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.

Answer 85

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.

Answer 86

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.

Answer 87

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.

Answer 88

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.

Answer 89

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.

Answer 90

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.

Answer 91

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.

Answer 92

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.

Answer 93

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’.

Answer 94

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).

Answer 95

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.'

Answer 96

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.

Answer 97

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.

Answer 98

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.

Answer 99

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.

Answer 100

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.

Answer 101

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.

Answer 102

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.

Answer 103

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.

Answer 104

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.

Answer 105

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).

Answer 106

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.

Answer 107

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.

Answer 108

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.

Answer 109

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.

Answer 110

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.

Answer 111

As a preliminary issue Correct Correct. In a magistrates' court, any application under s.76 should be dealt with as a preliminary issue.

Answer 112

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.

Answer 113

The counts the defendant faces The prosecutor will usually also hand to the jury a copy of the indictment.

Answer 114

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.

Answer 115

What the meaning of intention is This is a matter for the judge to direct the jury on

Answer 116

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

Answer 117

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.

Answer 118

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.

Answer 119

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’.

Answer 120

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.

Answer 121

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.

Answer 122

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.

Answer 123

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.

Answer 124

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.

Answer 125

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.

Answer 126

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.

Answer 127

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.

Answer 128

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.

Answer 129

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.

Answer 130

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.

Answer 131

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.

Answer 132

Allow the prosecution to adduce evidence of D’s bad character, to correct the false impression they have created by suggesting they are honest and trustworthy. Correct Correct. The evidence is admissible under section 101(1)(f) to correct a false impression given by D. Section 105(1)(a) mentions the defendant ‘making an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’

Answer 133

In the Crown Court, a defence statement must be served within 28 days of the prosecution complying, or purporting to comply, with its duty of initial disclosure of unused material. A failure to do so allows the court to draw such inferences as appear proper in deciding whether the defendant is guilty. Correct. In the Crown Court, a defence statement is compulsory, so once initial disclosure of unused material has been made, a defence statement must be filed and served by the defence within 28 days.

Answer 134

The prosecutor has a duty to disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. Therefore, the defendant is entitled to disclosure of any material which meets this test. Correct. The Criminal Procedure and Investigations Act 1996 imposes a duty on the prosecution to review the material and disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. This applies whether the case is being tried in the magistrates’ or Crown Court and the duty to disclose commences before the defence statement is served when the defendant pleads not guilty in the magistrates’ court. incorrect The prosecutor has a duty under the Criminal Procedure and Investigations Act 1996 to disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. However, this applies only after the defendant has served a defence statement. Incorrect This is incorrect. The Criminal Procedure and Investigations Act 1996 imposes a duty on the prosecution to review the material and disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. The duty to disclose commences before the defence statement is served when the defendant pleads not guilty in the magistrates’ court. Please review your materials on the prosecutions duty of disclosure.

Answer 135

The next hearing will be the Plea and Trial Preparation Hearing which should take place within 28 days. The defendant will be arraigned, and the matter will be allocated a trial date. Correct. The defendant will have a PTPH to enter their plea, set a trial date and set directions to ensure effective case management. This should take place within 28 days.

Answer 136

We can make a submission of no case to answer. The judge will have to consider whether the prosecution evidence taken at its highest is enough on which a jury can safely convict. If we are successful the court will acquit. Correct Correct. You can make a ‘half time submission’ of no case to answer. See guidance under R v Galbraith [1981] 73 Cr App R 124. The other answers while plausible are incorrect: If there is no evidence against your client then the judge must acquit (this is not a discretion). The jury does not hear an application of no case to answer. When deciding if there is no case to answer, the judge will not simply consider whether there is any evidence against your client as this is not the correct test. A submission of no case to answer would always be made after all of the prosecution evidence has been heard. It would not be made after the defence case.

Answer 137

The identification evidence is unsupported and the prosecution case wholly depends on the correctness of the identification so the judge must give a special direction to the jury. Correct Correct. The judge must give a Turnbull direction. Failure to do so is likely to mean the conviction would be quashed on appeal. The other answers while plausible are incorrect: The judge might consider withdrawing the case from the jury but they are not obliged to do so. It is not necessarily the case that the ID evidence is weak (that is a matter for the jury), instead a Turnbull direction deals with the possibility of mistaken identification. A Turnbull direction must be given in this situation The Judge does not decide on the strength or weakness but instead gives a Turnbull direction.

Answer 138

The judge will direct the jury regarding the law. In relation to self-defence she will explain that burden is on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. Correct Correct. The jury is obliged to follow the judge’s directions on the law, and the explanation of the law here is correct. The other answers while plausible are incorrect: It is not for the jury to interpret how the law should be applied. They are the tribunal of fact not law. The judge must direct the jury as to the law if a defence has been raised. The burden to prove self-defence is on the prosecution NOT the defence. The judge will make directions regarding the law. incorrect The judge will direct the jury as to the law, but it is for the jury to interpret how the law should be applied. In relation to self-defence she will explain that burden is on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. Incorrect. The jury does not interpret the law, the judge must direct the jury as to the law and how it should be interpreted. Please review you materials on jury trial and in particular summing up.

Answer 139

The Crown Court. Due to the separation of the tribunal of fact and law, if the confession evidence is excluded, then the jury will not hear the prejudicial evidence. Correct Correct. As the facts state that the confession evidence is the only compelling evidence, if this is excluded by the judge (and you are told that is is likely to happen), then the jury will not hear this prejudicial evidence and your client will likely be acquitted as the rest of the case is weak. The other answers while plausible are incorrect: While it is true that there are higher acquittal rates in the Crown Court, it does not address the specific facts of your client's case. The tribunal of fact and law are not separated in the magistrates' court and the magistrates will have to put the confession 'out of their minds' but will no doubt be subconsciously prejudiced by it. Generally speaking, if the case is retained by the magistrates' court, the sentence will be lower, however, if the court deems its sentencing powers are insufficient, the court should commit the case to the Crown Court for sentence and as such, it will not always be lower. A Crown Court Judge would not need to put the confession ‘out of their mind’ because they are not the judge of fact. The jury will not hear about the confession.

Answer 140

The judge should allow the case to go to the jury but give a Turnbull warning. Correct Correct. A Turnbull direction should be given when the case against the accused depends wholly or substantially on the correctness of the identification – Turnbull [1977] 63 Cr App 132. The other answers while plausible are incorrect: The Judge is unlikely to exclude the evidence as this is unlikely to satisfy the provisions of Section 78 PACE 1984; the witness is not casting doubt on her own eye witness evidence by, for example, indicating that she is not sure that her evidence is correct or by disowning the original identification. A Turnbull warning should be given as the case wholly or substantially depends on the correctness of the identification evidence of this witness. In addition, the witness did not know the Defendant and makes it more likely that a Turnbull direction should be given. The case should not be withdrawn from the jury. The witness has not accepted, for example, that she cannot be sure of her identification, but has given evidence that her identification was obstructed and she was some distance away. The Judge cannot simply inform the jury that the ID evidence is weak as they are the tribunal of fact. The Judge must deliver a warning as per Turnbull.

Answer 141

Where the out of court statement made is made by a person, who intended a machine to operate on the basis that the matter is as stated, which is tendered in evidence as proof of what was said was true Correct. This reflects the definition of hearsay evidence in s.114 and s.115 Criminal Justice Act 2003. The other options were all examples of classes of original evidence.

Answer 142

R v Twist Correct Correct. Ascertaining whether communications are hearsay or not has proved difficult in practice, so the three stage test in R v Twist has been used.

Answer 143

Identify the relevant question in the communication Correct This is not part of the three stage test from R v Twist. If the communication is a question such as a request for drugs, it is not a statement at all, so hearsay does not arise.

Answer 144

A relevant statement adduced for some reason other than to prove that the statement is true Correct. Original evidence is admissible provided it is relevant and may be admitted as evidence proving a fact in issue.

Answer 145

A statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated Correct Correct. Hearsay evidence is defined in s.114 and s.115 Criminal Justice Act 2003. If the advocate wants to use evidence of the out of court statement to prove that what was said was true and the apparent purpose of the maker of the statement was to cause another person to believe the matter stated then it is a hearsay statement and can only be admitted by one of the ‘gateways’.

Answer 146

Hearsay in which the maker of the statement is identified Correct Correct. Section 116 Criminal Justice Act 2003 cannot be used to introduce anonymous hearsay or evidence that would have been inadmissible such as bad character that is not admissible under ss.100 or101.

Answer 147

If the statement’s reliability is doubtful Correct Correct. The court has an exclusionary discretion in relation to business etc documents to exclude if it is satisfied that the statement’s reliability is doubtful (s.117(6) and(7) Criminal Justice Act 2003). The other options were all examples of situations where hearsay may be admissible: in the interests of justice (s.114(1)(d)), if the witness is unavailable (s.116) or if it falls under a common law exception (s.118)

Answer 148

Unfitness relates to the ability of a witness to give evidence in court Correct. Unfitness to be a witness under section s.116(2) Criminal Justice Act 2003 because of their bodily or mental condition refers not to their fitness to physically attend court but to their ability to give evidence once there. There is no requirement that the condition which makes a person unfit is a medical condition.

Answer 149

Previous statements of a witness Correct. The other options were all common law exceptions preserved under the Criminal Justice Act, s.118.

Answer 150

Common law Correct. Notice is not required under the common law exceptions preserved in s.118 Criminal Justice Act 2003.

Answer 151

As soon as reasonably practicable Correct Correct. The prosecution must serve notice not more than 20 business days after a not guilty plea in the magistrates’ court or 10 business days after a not guilty plea in the Crown Court.

Answer 152

Defendant Correct Correct. The defendant is not competent for the prosecution but are on their own behalf or on behalf of a co-defendant. incorrect Children and persons with a disorder or disability Incorrect. They are if they can understand questions and give comprehensible answers. Review your materials on preliminary witness issues, in particular on competent witnesses.

Answer 153

Spouse/ civil partner for the defendant Correct Correct. A spouse/ civil partner can be compelled to give evidence for their spouse/ civil partner.

Answer 154

Where the expert’s opinion and all other evidence leads inevitably to only one conclusion Correct Correct. However, generally the jury is not obliged to accept expert evidence, even if it is not contradicted.

Answer 155

Cross-examination Correct. Advocates may ask questions that contain factual statements that indicate what answer the advocate wants the witness to make. Leading questions can be asked in examination in chief and re-examination if the matter is not in dispute.

Answer 156

A witness called by a party who gives evidence not in accordance with their statement damaging to the party calling them Correct Correct. In these circumstances, the witness may be called to give evidence and if and when the witness starts to contradict the evidence given before (i.e. in their written statement) the party can ask for the statement to be put to the witness, and the witness can effectively be cross-examined by their own Counsel with the purpose of establishing the truth of the earlier account.

Answer 157

Finality on collateral matters Correct Correct. The courts are more lenient in allowing evidence to be admitted on the 'collateral' issue of a witness being 'biased or partial' and even when a witness denies such, counter-evidence will be admissible. The other options were all examples of the use of previous consistent statements in examination in chief.

Answer 158

If the court accepts that the witness will not give evidence through fear, then it will consider whether admission of the statement will result in unfairness to the defendant as he will be unable to challenge the statement, and whether special measures might be used to alleviate the witness’s fears. Correct Correct. A statement can be read as hearsay under section 116 of the CJA 2003. Section 116 (4) states: Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard: a. to the statement's contents, b. to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), c. in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person, and d. to any other relevant circumstances.'

Answer 159

The statement will be admissible as the witness is unavailable. The defence will seek to exclude it under s 78 PACE. Correct. The complainant’s statement is prima facie admissible as they are unfit to be a witness, see s.116(2)(b) Criminal Justice Act 2003. The defence can challenge the admission on the basis it would have an adverse effect on the fairness of the case. The other answers were either incorrect or not the best answer. There are circumstances in which statements not made in oral evidence can be admissible without the agreement of the defence or leave of the judge. incorrect The statement will be inadmissible unless the judge gives leave to admit it under section 116(2) Criminal Justice Act 2003. Incorrect. Review your materials on unavailable witnesses, in particular s.116(2)(b) Criminal Justice Act 2003 and when leave is needed.

Answer 160

This evidence is not hearsay but is admissible as it is relevant to the defence. Correct Correct. The purpose of repeating the statement at trial is to support the defence, - ie. going to state of mind and not to establish the threat was true. Hearsay does not apply . The evidence is admissible as relevant as it gives a reason why D committed the offence incorrect This evidence is hearsay but will be admissible if it is in the interests of justice to admit it. Incorrect. Hearsay does not apply here as the purpose of repeating the statement at trial is going to state of mind and not to establish the threat was true. Review the definition of hearsay in s.115 Criminal Justice Act 2003 and statements providing a reason for acting.

Answer 161

A and B are competent and compellable for the prosecution Correct Correct. A and B are ordinary witnesses and competent and compellable. D’s spouse S is competent to give evidence for the prosecution. See s.53(1) Youth Justice and Criminal Evidence Act 1999 and s.80(1) Police and Criminal Evidence Act 1984 but cannot be compelled as the offence is not specified under s 80 PACE 1984. D’s spouse is competent and compellable for the accused provided not on trial themselves. Although R is 14, age is not the determining factor of whether they are competent; the only test is whether R can: (i) understand the questions; and (ii) can give comprehensible answers

Answer 162

Did you fall over when hit? Correct Correct. This is a leading question. It assumes that the defendant was hit. The other questions are all acceptable given the agreed facts between the defence and prosecution

Answer 163

Protection of the police. correct It is not protection of the police but protection of the public to which s 57 Sentencing Act 2020 refers.

Answer 164

The court proceeds to sentence the defendant on the prosecution version on the facts. Correct Correct. If the court do not deem it absurd, they move on to consider whether it will make a material difference to sentence if the court sentences on the defence version instead of the prosecution version of the facts.

Answer 165

Yes, if the magistrates’ commit the defendant for sentence . Correct Correct. In this situation the defendant can be sentenced in the magistrates’ court but the magistrates’ may commit the defendant to the Crown Court for sentencing.

Answer 166

Maximum 1/4 Correct Correct. However, it is perfectly acceptable for the court to give less credit should it think it appropriate.

Answer 167

Be a statutory aggravating factor. Correct Correct. Previous convictions are not considered when considering culpability in relation to the offence, they are an aggravating factor.

Answer 168

The court must not pass a custodial sentence unless the offence was so serious that neither a fine nor a community sentence can be justified. Correct. This most accurately reflects the negatively phrased wording in s 230 SA 2020.

Answer 169

Three years. Correct Correct. As an order can only be three years long, the requirements need to be possible to complete within that timescale.

Answer 170

Fining the offender up to £5000. Correct Correct. The maximum fine is £2,500. The court can also deal with the offender by amending the order or revoking the order and re-sentencing the offender to anything that the court could have sentenced the offender to originally. The court has the power to impose a custodial sentence for a non-imprisonable offence (of upto 6 months) only if the offender willfully and persistently breached the requirements of the community order

Answer 171

The court must not make a community order unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it was serious enough to warrant the making of such an order. Correct Correct. This most accurately reflects the negatively phrased wording in s 204 SA 2020.

Answer 172

The maximum length of a suspended sentence in the Crown Court is one of 2 years custody, suspended for an operational period of 2 years. Correct- The custodial term is how long a prison sentence the offender would have received but for it being suspended. The operational period is how long the custodial term is suspended for. This must be between six months and two years.

Answer 173

The minimum term is three years for a third offence of domestic burglary Correct- The other correct minimum terms here are seven years’ imprisonment for a third Class A drug trafficking offence; six months for a second offence of possessing a weapon. Incorrect The minimum term for an offence of murder is life imprisonment. Incorrect. Life imprisonment is mandatory sentence. The minimum tariff to be served is set by the court at sentence.

Answer 174

The defendant may be released from when they have served 4 years in custody. Correct Correct- a defendant is eligible to apply to the parole board for release at the 2/3 point of their custodial term. They must in any event be released once the custodial term has been served.

Answer 175

If he is found guilty and the magistrates determine their sentencing powers are insufficient then he will be sent to the Crown Court for sentencing. The Crown Court will have the same sentencing powers as if he had been tried in that court. Correct Correct. Even though the magistrates' court accepted jurisdiction the matter can be remitted to the Crown Court for sentence if having heard the evidence they believe their sentencing powers are insufficient. The Crown Court is not limited and can award any sentence available for those offences. The other answers while plausible are incorrect: - He will not definitely be sentenced in the magistrates' court. The court can send to the Crown Court for sentencing if having heard the case they conclude their powers are not sufficient. - An either way offence does not necessarily have to be sent to the Crown Court for sentencing - If a case is sent to the Crown Court for sentencing then the Crown Court is not restricted to the sentencing powers of the magistrates. (Of course this would defeat the object of sending in the first place). - The number of offences does not dictate that an either way offence must be sent to the Crown Court for sentencing.

Answer 176

If you commit any offence during the operational period of two years then some of all of your 18 month suspended sentence can be activated. Correct Correct. There is an assumption that the suspended sentence will be activated (whole or in part) unless it is unjust to do so. The other answers whilst plausible are not correct: - It is not just during the supervision period that a further offence would activate the sentence. Of course, during supervision the client would be expected to work with probation and failure to do so might result in a breach of the suspended sentence. - The court does not resentence - i.e. look again at the offence - but the sentence is activated instead. - An offence is unlikely to result in just a warning from probation (whereas a breach of license conditions would). There is an assumption that it would be activated unless unjust to do so. - It is very likely that a further offence would result in the activation of a suspended sentence. incorrect If you commit any offence during the operational period of two years then the court will resentence you for your original offence. Incorrect. This is not an accurate statement of when a suspended statement would be activated. Please review your materials on suspended sentences. If you commit any offence during the supervision period of one year then some of all of your 18 month suspended sentence will be activated. Incorrect. This is not an accurate statement of when a suspended statement would be activated. Please review your materials on suspended sentences.

Answer 177

The court will sentence your client for the new offence and may resentence him for the original offence. Correct. The key date is the date of the new offence which falls within the 12 month conditional discharge (it is 10 months from the original sentence). The court may resentence him, but it is not an obligation. The other answers whilst plausible are not correct: - The original sentence has not expired as the offence took place after 10 months. Key is the date of the offence, not when the court disposes of the matter. - A conditional discharge should not be confused with a suspended sentence - it is not activated as such. - The court 'may' re-sentence for the original but they are not bound to or bound to a particular sentence. - Breach of a conditional discharge might be an aggravating factor, but the court would also consider re-sentencing for the original offence or offences.

Answer 178

A reduction is at the discretion of the judge and will be a maximum of 1/10. Correct. The judge has a discretion to grant up to a 1/10 discount on sentence for a guilty plea on the first day of trial. However, the exact discount will depend on the case and the circumstances of the plea. The other answers whilst plausible are incorrect: - A slight reduction might be available during trial, but she could not expect to plead guilty shortly before conclusion of the trial. - The judge is not obliged to give the full 1/10 discount for the guilty plea, and might award a lower discount or non at all. - A discount of up to 1/4 would be available after the first stage of proceedings, but thereafter on a sliding scale with a maximum of 1/10 on the day of trial. - Discount is available on the first day of trial. This reduces waste in terms of time and resources by offering a defendant an incentive not to run a trial. incorrect A reduction of 1/10 must be given by the judge. Incorrect. Please review your materials on guilty pleas. A reduction is at the discretion of the judge and will be a maximum of 1/10. She can plead guilty at any stage during the trial to obtain a discount. Incorrect. Please review your materials on guilty pleas. A reduction of up to 1/4 is available as the trial has not started yet, but this is at the discretion of the judge. Incorrect. Please review your materials on guilty pleas.

Answer 179

The judge is likely to order a Newton Hearing. Correct Correct. This answer reflects the position when the judge does not find the basis of plea absurd or equivocal but the Defendant’s basis would materially affect sentence. The other options were incorrect. Sentencing on D’s account without enquiry is unlikely to occur when the difference in the case for the Defence and Prosecution is likely to create a material difference in sentence. The judge is likely to order a trial in the event of an equivocal plea, which does not arise on this scenario. Sentencing on the Prosecution account is unlikely unless D’s case is considered absurd.

Answer 180

In a magistrates’ court for first appearance, trial and sentencing. Correct. Common assault is a summary only offence which will be dealt with in a magistrates’ court in its entirety.

Answer 181

Bad character evidence, hearsay evidence, special measures, disclosure, expert evidence, and editing transcripts of interviews. incorrect Bad character evidence, hearsay evidence, special measures, disclosure, expert evidence, warnings to the defendant about inferences from a failure to testify. Incorrect. A warning to the defendant regarding inferences from a failure to testify will take place at the trial itself

Answer 182

Bad character evidence, hearsay evidence, special measures, disclosure, expert evidence, and editing transcripts of interviews. Correct. These are not the only directions but reflect the standard directions which could be made incorrect Bad character evidence, hearsay evidence, special measures, disclosure, expert evidence, warnings to the defendant about inferences from a failure to testify. Incorrect. A warning to the defendant regarding inferences from a failure to testify will take place at the trial itself

Answer 183

A defendant must be present at the first hearing in relation to a summary only offence. Correct. The defendant does not need to be present. It is possible to plead guilty by post. The court can, and will often, proceed in the absence of the defendant for more minor offences.

Answer 184

When the defendant is represented. Correct. The prosecution is also entitled to make a closing speech if the defendant has introduced evidence other than their own, whether represented or not.

Answer 185

Call the witness. Correct. The defence will ask that the witness attend and that the area of dispute is put to them in cross-examination. Having opened its case, the prosecution will present its evidence to the court. Evidence can be presented by: - calling witnesses; - reading witness statements under s.9 Criminal Justice Act (‘CJA’) 1967 when the evidence of that witness is not in dispute or where the prosecution have made a successful application to read a witness statement or part of it under the hearsay provisions; - reading admissions under s.10 CJA 1967 i.e. facts which are agreed by the prosecution and defence.

Answer 186

Before retiring to consider their verdict, the legal adviser will advise lay magistrates in open court on any matters of law that are required. Correct. The legal advice must be provided in open court. When a District Judge is hearing the case, even if an authorised court officer was present, there would rarely be any need for such advice to be given.

Answer 187

An application to the magistrates’ to set the conviction aside Correct Correct. Section 142 MCA 1980 enables an accused who was convicted in a magistrates’ court (whether he pleaded guilty or was found guilty) to ask the magistrates to set the conviction aside. The test is whether it is in the interests of justice that the case should be head again. The application can be considered by the same magistrates who convicted the accused but if the conviction is set aside, then the case is reheard by different magistrates.

Answer 188

Against sentence Correct Correct. A defendant can generally only appeal against conviction if found guilty after a trial unless the defendant can demonstrate that their plea was equivocal. See s.108 of the Magistrates’ Courts Act 1980.

Answer 189

Promptly and in any event within three months after the grounds arose Correct. A failure to lodge an application for judicial review promptly can lead to the application being rejected even when lodged within three months.

Answer 190

Appeal from a magistrates’ court trial to the Crown Court Correct. The prosecution cannot appeal via this route. Its options of redress are limited to challenges to the High Court by way of case stated or judicial review.

Answer 191

Varying or rescinding a sentence or other order Correct Correct. Section 155(1) Powers of Criminal Courts (Sentencing) Act 2000 empowers a judge to vary or rescind a sentence or other order within 56 days of it being made.

Answer 192

Within 28 days of conviction Correct. This time limit can be extended but it is a matter for the Court’s discretion on reviewing the reasons for the delay.

Answer 193

A direction that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the appellant's sentence Correct. These may be imposed if the application is considered wholly without merit.

Answer 194

The acquittal stands Correct. The power of the Attorney-General to ask for the opinion of the Court of Appeal is intended to clarify the law, so the acquittal stands, whatever the Court of Appeal’s decision.

Answer 195

28 days Correct Correct. It is a matter for the Attorney General to consider whether leave should be sought for a reference and the time limit for doing so is 28 days.

Answer 196

A prosecution appeal against a Crown Court trial ruling that brings the case to an end Correct Correct. Rulings such as staying proceedings as an abuse of the court’s process and rulings of no case to answer for example. The provision does not apply to rulings to discharge the jury.

Answer 197

The prosecution cannot appeal against his acquittal. Correct. The prosecution cannot appeal against either conviction or sentence in the magistrates' court. They can only appeal to the Divisional Court by way of case stated if there is an error of law or the court acted in excess of jurisdiction. The other statements while plausible are incorrect: - The prosecution have no option to appeal against conviction to the Crown Court. By contrast the defendant can appeal against conviction and/or sentence to the Crown Court as of right. An appeal against a conviction would result in a retrial - The prosecution have no option to appeal against conviction to the Crown Court. By contrast the defendant can appeal against conviction and/or sentence to the Crown Court as of right. The Crown Court would hear an appeal against conviction by way of retrial, and cannot order a retrial in the magistrates' court. - The prosecution cannot appeal against sentence (or conviction) to the Crown Court. - The prosecution have no right to appeal to the Divisional Court. They can appeal by case stated where there has been an error of law or the magistrates acted in excess of the court's jurisdiction.

Answer 198

You can appeal to the Court of Appeal against sentence on the ground that the sentence is manifestly excessive. Correct Correct. This is usually on the grounds that the sentence was manifestly excessive and therefore not commensurate with the level of seriousness of the offence. The Court of Appeal cannot impose a more severe penalty than the Crown Court. The other answers while plausible are not correct. - A sentence might be perceived as harsh but that is not sufficient for a successful appeal against sentence. The sentence must be manifestly excessive in the circumstances. - The Court of Appeal cannot substitute a lengthier sentence that that made by the Crown Court. - You cannot appeal against sentence on the grounds that the conviction is unsafe. You can appeal against conviction on that ground, but there is no suggestion here of anything that would render the conviction unsafe. - You can appeal against both sentence and conviction BUT there is no suggestion that the conviction is unsafe on these facts.

Answer 199

Notice of appeal must be lodged within 15 business days of the sentence, so there is still time to appeal against conviction and sentence. Correct. The defendant has 15 business days from the date of sentence (not conviction) during with the lodge an appeal. This must be served on the relevant magistrates' court and the prosecution. The other answers while plausible are incorrect: - 21 days is the not the correct period. Appeals must be lodged within 15 business days. - The clock does not start running from conviction, but from sentence. A defendant must appeal (conviction and/or sentence) with 15 days from the date of sentence. - The time limit of 15 business days runs from sentence for appeals against sentence AND conviction. There are not two separate 'clocks'. - An appeal is not lodged at the Crown Court. It must be served on the relevant magistrates' court and the prosecution.

Answer 200

There will be a re-hearing of her case before a judge and two lay magistrates which will proceed in the same way as her original trial. Neither defence nor prosecution are restricted to the same evidence as the original trial. Correct Correct. There is a retrial of the matter during which evidence will be called, and witnesses cross examined. New evidence can be adduced. The other statements while plausible are incorrect: - The parties are NOT restricted to the same evidence as in the first trial. This is, in effect, a new trial. - The Crown Court will not order a retrial of the case. It is the Crown Court who will make the finding of guilty or not guilty based on the re-hearing of the evidence. - It is not the case that facts are presented to the court. There is a full hearing of the evidence. If the appeal is against sentence only then the court would hear facts and mitigation. - A re-hearing cannot be heard by a judge sitting alone. There are normally two magistrates, and in exceptional circumstances the court can proceed with just one lay magistrate.

Answer 201

He can renew his application for leave to the full court of two or three judges where the application will be reconsidered by way of oral hearing. Correct. If leave to appeal is rejected by the Single Judge on the papers then the application for leave can be renewed. However, there is no legal aid available for this hearing so counsel would have to represent the defendant on a pro bono or private basis. The other statements whilst plausible are incorrect: - Refusal by the Single Judge is not the last option. As stated above the application can be renewed. - On renewal of the application the court is not considering the merits of the appeal case, but whether the leave should be granted to bring the appeal. - A renewal application takes place before the full court by way of oral hearing, not papers only. - A defendant cannot request an oral hearing before a Single Judge. incorrect He can renew his application to the full Court of Appeal who will consider the matter based on the same papers provided to the Single Judge. Incorrect. This is not the correct procedure. Please review your materials on appeals from the Crown Court. He can renew his appeal to the full Court of Appeal, where two or three judges will decide on the appeal, and quash the conviction or order a retrial where appropriate. Incorrect. This is not the correct procedure. Please review your materials on appeals from the Crown Court.

Answer 202

True Correct Correct. Your materials discuss youths aged between 10 and 17 years old.

Answer 203

A person under the age of 14 years old. Correct Correct. The Children and Young Persons Act 1933 s.107 defines a 'child' as a person under the age of 14 years old,

Answer 204

The youth court is not a public court, reporting restrictions apply automatically and the defendants are called by their first names. Correct Correct. There are other ways in which the court differs, but these are correct. Trained magistrates can sit as well as district judges. reporting restrictions are automatic!

Answer 205

To assist juveniles and vulnerable persons to communicate with the police, including explaining the caution and the right to silence. Correct Correct answer. This is not a responsibility of the appropriate adult.

Answer 206

A person, including a parent or guardian, should not be an appropriate adult if they have previous convictions. Correct Correct. There is nothing preventing someone with previous convictions from acting as an appropriate adult.

Answer 207

False Correct. A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want. An appropriate adult is not subject to legal privilege.

Answer 208

Prevent offending. Correct Correct. The sentencing court must have in mind the aims of the youth justice system, namely to prevent offending and to have regard to the youth’s welfare. The other options are some the purposes of sentencing for offenders over the age of 18 contained within s.57 Sentencing Act 2020.

Answer 209

Correct Correct. This can impact the sentence a youth is given, for example a Detention and Training Order if aged 17 at the date of conviction, rather than detention in a Young Offenders Institution if aged 18 at the date of conviction.

Answer 210

When charged with homicide. Correct Correct. If charged with homicide, then the court must send the case forthwith. The youth court has no jurisdiction in this matter. It has specific statutory powers in the other two cases to enable a committal for sentence.

Answer 211

Adult magistrates' court. Correct. The powers of the adult court are limited to fines, discharges and referral orders. Incorrect. The Crown Court does have the power provided the offence is serious enough to warrant it. Review the overview of available sentences within your youth sentencing materials.

Answer 212

A sentence of detention of 4 years. Correct. The Crown Court does have the power to order the other sentences but not on these facts. For an extended sentence and life the offender must be deemed dangerous. Murder carries Detention at Her Majesty’s pleasure. incorrect The imposition of a sentence of detention for life. Incorrect Incorrect - Although robbery carries a maximum of life and is a specified offence, the offender must be dangerous. Review the overview of available sentences within your youth sentencing materials.

Answer 213

The sentence must be imposed in the youth court. Correct. The Crown Court can also make a referral order. If the other option are met then a referral order must be made.

Answer 214

Youth charged with an either-way offence Correct. The presumption is that youths will be tried in the youth court, regardless of the seriousness of the offence which applies to indictable only offences except homicide and certain firearms offences. All of the other options were circumstances in which a youth must be tried in the Crown Court.

Answer 215

Youth charged with an either-way offence Correct. Generally, there will be no plea before venue/ mode of trial in the youth court. However, the other options were circumstances in which the plea before venue/ mode of trial procedure applies to youths.

Answer 216

Youth and adult jointly charged with any offence Correct. The other options were circumstances in which the youth may be tried by the adult magistrates’ court. incorrect Youth charged with aiding and abetting an adult Incorrect. The adult magistrates’ court may try the youth and the adult together. However, the adult magistrates’ court can remit the youth to the youth court for trial. Review your materials on youth court procedure, in particular a youth jointly charged with an adult.

Answer 217

Your client and the co-defendant will be tried in the adult magistrates' court. Correct Correct. She must be tried in the adult magistrates's court. There is no option to elect and the co-defendant adult cannot be tried in the Youth Court. So this matter will stay in the adult magistrates' court. The other answers whilst plausible are not correct: - Both defendants cannot be tried in the Youth Court as the co-defendant is an adult. - A youth cannot elect Crown Court. - For a joint offence both defendants must be dealt with in the same court. - A youth cannot elect Crown Court (leaving the adult co-defendant in the magistrates' court)

Answer 218

He can be committed for sentence if the Youth Court decide that a sentence in excess of a two year detention and training order is required. Correct Correct. The youth court (or the adult magistrates' court if the youth is appearing there) can commit a youth to the Crown Court for sentence where they are charged with certain serious offences. Three powers of committal to the Crown Court for sentence apply to youths: Youth pleads guilty to, or is found guilty of, an offence to which s.249 SA 2020(grave crimes) applies and the court considers a sentence in excess of two years’ detention is required (s.16 SA 2020); Youth pleads guilty to, or is found guilty of, a specified offence for which an extended sentence under s.254 SA 2020(dangerous offenders) is required (s.17 SQ 2020); Youth pleads guilty to an offence to which s.249 SA 2020 (grave crime) applies and the court has already sent the youth to the Crown Court for trial for one or more related offences; it may commit the youth to the Crown Court in respect of the new 249 offence (s.19 SA 2020); Where a youth has been committed in accordance with these provisions the Crown Court can deal with the youth in any way in which it could deal with the youth if they had just been convicted of the offence on indictment before the court. In this case the client would be found guilty of a 'grave crime'. A grave crime is any offence which carries a sentence of 14 years or more for adults. S.18 carries a maximum of life imprisonment. The other answers whilst plausible are incorrect: - The offence is a grave crime, but that does not automatically mean that he will would be committed for sentence. - Committal for sentence does not require a homicide offence. - Crown Court is not limited to the sentencing powers of the Youth Court in these circumstances. - s.18 GBH carries up to life imprisonment so is a grave crime incorrect He will be committed because GBH with intent is classed as a 'grave crime' so he must be sentenced in the Crown Court. Incorrect Incorrect. Please review your materials on committal for sentence for youths, and in particular the 'grave crime' provisions.

Answer 219

The Youth Court must consider whether, if convicted of the offence there is a real prospect that a sentence in excess of two years’ detention will be imposed. If they consider there is a real prospect, then they must send the youth to the Crown Court for trial. Correct Correct. s.18 offences are grave crimes under s249 SA 2020. The Youth Court's maximum sentencing powers are a 2 year detention and training order and if there is a real prospect of a sentence in excess of 2 years being imposed then it must send to the Crown Court for trial. The Youth Court also has the same power in terms of committal for sentence after trial. The other answers while plausible are incorrect: - 'any chance' is incorrect. The court is looking at whether there is a 'real prospect' that the sentence would be in excess of a 2 year DTO. - 'may' is incorrect. Once the court determines there is a real prospect that the sentence would be in excess of a 2 year DTO then is MUST send to the Crown Court. - The maximum sentence in the Youth Court is 2 years detention and training order, NOT 6 months imprisonment - GBH is a grave crime (being an offence that carries at least 14 years imprisonment for adults). However, the court must go on to determine whether there is a real prospect that the sentence would be in excess of 2 years DTO.

Answer 220

The co-defendant will plead not guilty and the magistrates' court will determine whether they should retain jurisdiction. If they decline jurisdiction or the co-defendant elects Crown Court trial then the magistrates will consider mode of trial for your client. The court will consider whether it is necessary and in the interests of justice to send him to be tried with the adult. Correct Correct. The first appearance will be in the adult magistrates' court. If the magistrates have determined that the adult should be tried in the Crown Court then they must proceed to the mode of trial procedure. The criterion is whether it is ‘necessary in the interests of justice’ to send the youth to be tried with the adult (s.51(7) Crime and Disorder Act 1998). The other answers while plausible are incorrect: - A youth cannot elect Crown Court trial, and would by tried in the Youth Court (not adult magistrates' court) in any event. - A youth cannot elect Crown Court trial. - If the adult co-defendant is to be tried in the Crown Court the youth will not automatically be tried separately in the Youth Court. It is for the magistrates' to determine whether it is the interests of justice to try them together or separately. - An adult charged with a youth is still able to elect Crown Court trial. Though a youth has no right to elect Crown Court. Incorrect The co-defendant will plead not guilty and the magistrates' court will determine whether they should retain jurisdiction. If they accept jurisdiction then the case will remain in the magistrates' court and neither defendant can elect Crown Court trial. Incorrect. An adult can still elect Crown Court trial. Please review your materials on Youth Court procedure where a youth is charged jointly with an adult.

Answer 221

Anyone aged 10 to 17 on the day of the first hearing. Correct Correct. Children under 10 cannot be convicted of an offence, and if a defendant is still 17 on the date of the first hearing then they will be dealt with by the Youth Court. The other answers whilst plausible are incorrect: - Children under 10 are not criminally responsible - Children under 10 are not criminally responsible, and the key date for age purposes is the date of the first hearing and not the date of charge. Further, the youth court deals with under 18 year olds not under 17 year olds. - Anyone aged 10 to 17 is correct, but does not specify what happens if they turn 18 by the time of the first hearing. - Day of charge is not the relevant date for determining which court will deal with the defendant. If they are 17 of the day of charge they might have turned 18 before the first hearing, in which case they would be dealt with in the adult court.

Answer 222

The officer having grabbed the man by the throat may constitute oppression. If so, and if that caused the confession, then the court must exclude the confession from the evidence. Correct. The officer grabbing the man by the throat and threatening him whilst he was in handcuffs may amount to oppression under s.76(8) Police and Criminal Evidence Act 1984 (PACE). If it can be shown that this is oppression and this caused the man to confess then the court must exclude the confession under s.76(2)(a) PACE 1984. Whilst the other answer options sound plausible, they are each incorrect. It is incorrect to state that the officer grabbing the man by the throat will not constitute oppression, as it does not amount to torture. Whilst the definition of oppression does refer to torture, it is not limited to torture. It may be that the officer grabbing the man by the throat amounts to oppression if it falls within the definition under s.76(8) PACE. It is incorrect to state that if the officer grabbing the man by the throat amounts to oppression and the confession was caused by that oppression, that the court have a discretionary power to exclude the confession evidence. If the officer’s actions are found to amount to oppression and this caused the confession then the court must exclude the confession evidence. It is incorrect to state that the defence would have to prove that the officer grabbing the man by the throat amounts to oppression and that this caused the man to confess. If the defence raises the issue of oppression, it is for the prosecution to prove that the confession was not obtained using oppression. The standard of proof on the prosecution is beyond reasonable doubt. It is incorrect to state that if the court is satisfied on the balance of probabilities that the confession was obtained by oppression then the court must exclude the evidence. It is for the prosecution to prove beyond reasonable doubt that the confession was not obtained using oppression. If they cannot do this then the court would find that the confession was obtained using oppression and must exclude it. Please review your materials on confession evidence and the courts power to exclude any confession evidence that has been obtained using oppression. You should review the relevant sections of PACE.

Answer 223

The burden of proving the elements of the offence rests with the prosecution who must prove those elements beyond reasonable doubt. The defence does not have to prove anything. Well done, this is the single best answer as it correctly states what the prosecution has to prove and correctly states the standard of proof placed on the prosecution (beyond reasonable doubt). See Woolmington v DPP [1935] UKHL 1. The answer makes it clear that on these facts the defence does not have to prove anything. While the other answers might sound plausible, they are incorrect. There is no burden of proof on the defence in this case. It is for the prosecution to prove beyond reasonable doubt that the defendant pushed the victim. In cases where there is a burden of proof on the defendant, the standard of proof is usually on the balance of probabilities. The standard of proof for the prosecution is beyond reasonable doubt, not the balance of probabilities. The offence is not one of strict liability as s.18 has the mens rea of intention to cause GBH. Please review your materials on the burden and standard of proof as it applies in relation to the offences on the syllabus.

Answer 224

You and your firm should act for both suspects unless there is a conflict of interest or risk of one. Correct. In publicly funded cases, regulations require that one litigator be appointed to act for all co-defendants in a legal aid case unless there is, or is likely to be, a conflict of interest. The SRA Code of Practice paragraph 6.2 sets out the prohibition on acting in conflict situations and requires that you do not act if you have a conflict of interest or a significant risk of a conflict of such a conflict. The exceptions in paragraphs 6.2(a) and (b) are not relevant in this context.

Answer 225

You should advise the defendant that he has a right to silence. Based on the account that he has provided to you, however, he should answer police questions to account for his presence. Correct. This answer correctly states that the defendant has a right to silence. A failure to account for his presence at the scene could lead to an adverse inference being drawn under s.37 Criminal Justice and Public Order Act 1994 (‘CJPOA’). If you are confident that his reason for being at the scene is a legitimate one, then you should advise your client to answer questions so he provide the police with his reason for being present at the scene and avoid an adverse inference being drawn against him. Whilst the other answers are plausible; they are each incorrect. It is incorrect to state that the defendant should remain silent as he has not provided a credible reason for his presence at the scene. You have failed to mention that this would lead to an adverse inference being drawn against him under s.37 Criminal Justice and Public Order Act (‘CJPOA’). It is incorrect to state that the defendant should remain silent as he is likely to come across as dishonest if he provides his reason for being present at the scene. You have failed to mention that this would lead to an adverse inference being drawn against him under s.37 Criminal Justice and Public Order Act (‘CJPOA’). It is incorrect to advise the client to only answer the questions relating to his presence at the scene. You must advise of the fact that an adverse inference could be drawn, under s.34 Criminal Justice and Public Order Act (‘CJPOA’), if this were the case as the court would want to know why he answered some questions in interview but not others. It is incorrect to state that the defendant does not need to answer questions as they have exercised their right to legal advice. An adverse inference can still be drawn under s.37 Criminal Justice and Public Order Act (‘CJPOA’) whether the client obtained legal advice or not. Please review your materials on advising a suspect at the police station for interview and adverse inferences.

Answer 226

If the defendant exercises his right of silence in interview, he runs the risk of an adverse inference being drawn at trial under s.34 CJPOA 1994, if he goes on to raise self-defence. Correct. The answer states that there is a possibility of an adverse inference being drawn at trial if he remains silent in his police interview but later goes on to raise self-defence, setting out that he was the victim of the assault and the blood found on his clothes was his own. The adverse inference will be drawn under s.34 Criminal Justice and Public Order Act 1994 (‘CJPOA’). Whilst the other answer options sound plausible, they are each incorrect. It is incorrect to state that the defendant only runs the risk of an adverse inference being drawn under s.34 CJPOA if he continues to remain silent at trial. A S.34 CJPOA inference will only be drawn where the defendant is silent in interview but later puts forward an account during the trial. If the defendant remains silent at trial an adverse inference may be drawn under s.35 CJPOA. It is incorrect to state that the defendant runs the risk of an adverse inference being drawn under s.34 CJPOA unless he can show that he did not know the answers to the questions during the interview. Whilst it is correct that the defendant can only be expected to answer questions that he could have reasonably known at the time of the questions being asked, that does not apply on these facts. The defendant would have known, at the time of the interview, that he was the victim of the fight and the blood on his clothes belonged to him. It is incorrect to state that the defendant runs the risk of an adverse inference being drawn under s.34 CJPOA unless he states that he relied on legal advice to remain silent. Reliance on legal advice is not enough on its own to prevent an adverse inference being drawn. It is incorrect to state that the defendant runs the risk of an adverse inference being drawn under s.34 CJPOA unless he can show that the police failed to provide full disclosure to the solicitor. This is incorrect because the police do not have an obligation to provide full disclosure to the solicitor and this is not a reason to avoid an adverse inference being drawn. Please review your materials on adverse inferences, particularly s.34 CJPOA 1994. You should also review your materials on s.35, s.36, s.37 CJPOA.

Answer 227

The defendant’s detention must be reviewed by the Review Officer no later than 16.10 hours on 12 December. Correct. This answer correctly states the time period within which the first review must be carried out in accordance with s.40 Police Criminal Evidence Act 1984 (‘PACE’). It correctly calculates that time period from the time detention was authorised. Whilst the other answer options sound plausible, they are each incorrect. It is incorrect to state that the defendant’s detention must be reviewed no later than 15.30hours on the 12th December as this calculates the time for review from the time of arrest not the time detention was authorised. It is incorrect to state that the defendant’s detention must be reviewed no later than 18.30hours on the 12th December as this uses the wrong time period to calculate review. It also calculates the time for review from the time of arrest rather than the time the detention was authorised. It is incorrect to state that the defendant’s detention must be reviewed no later than 15.55hours on the 12th December as this calculates the time for review from the time of arrival at the police station not the time detention was authorised. It is incorrect to state that the defendant’s detention must be reviewed no later than 19.10hours on the 12th December as this uses the wrong time period to calculate review. Please review your materials on detention review periods and s.40 PACE. You should review the time period within which the first review should take place and when that time is calculated from as well as the time period within which any subsequent reviews ought to take place.

Answer 228

It appears that the stolen goods have been recovered, the delay is no longer necessary, and the woman should be permitted to notify her boyfriend of her arrest. Correct. S. 56(3) PACE 1984 provides that any delay to the right to have someone informed should be proportionate and should last no longer than 36 hours. If the goods have been recovered, then the delay is no longer proportionate. Whilst the other answers are plausible, they are each incorrect. It is correct that the delay should last no longer than 36 hours and the suspect has only been in detention for 12 hours, but it is disproportionate to continue to delay her right to have someone informed of her arrest on the basis that the goods appear to have been recovered and there doesn’t appear to be any other reason to withhold her right to intimation on the facts presented. It is correct to say the delay is under 24 hours but that has no relevance to this question. The right to have someone informed can be delayed for up to 36 hours not 24 hours. The suspect has only been in detention for 12 hours but it is disproportionate to continue to delay her right to have someone informed of her arrest, on the basis that the goods appear to have been recovered and there doesn’t appear to be any other reason to withhold her right to intimation on the facts presented. It is incorrect to suggest that the suspect’s right to have someone informed of her arrest is in anyway linked to the value of goods that have been stolen. The value of the goods is not relevant to the question of whether it is proportionate to delay the woman’s right to inform someone of her arrest. It is incorrect to suggest that the suspect’s right to have someone informed of her arrest is in anyway linked to the nature of the offence that she has been arrested for. The fact that she has been arrested for theft is not relevant to the question of whether it is proportionate to delay the woman’s right to inform someone of her arrest. Please review your materials on Police Powers – the right to have someone informed of arrest and s.56 PACE 1984.

Answer 229

The male can be detained only until 02.45 on 14th September unless his detention is lawfully extended. An extension to detain until 14.45 hours on 14th September can be authorised by a superintendent. Correct. This answer best reflects the position in relation the 24 hour detention time limit and the extension of it in certain circumstances. The relevant time for working out the detention time limits under s.41 PACE and periods of extension under s.42 PACE, is the time of arrival at the police station. The relevant time limit is 24 hours from the time of arrival. This can be extended upto 36 hours in certain circumstances. Whilst other answer options might sound plausible, they are each incorrect. It is incorrect to state that the male can be detained only until 03.05 hours on the 14th September unless his detention is lawfully extended. This is because 03.05 hours was the time that detention was authorised and not the time he arrived at the police station. It is also incorrect to calculate the extension based on the time of his detention. It is incorrect to state that the male can be detained only until 02.20 hours on the 14th September unless his detention is lawfully extended. This is because 02.20 hours was the time of his arrest and not the time he arrived at the police station. There was no prolonged delay between his arrest and arriving at the police station. It is also incorrect to calculate the extension based on the time of arrest. It is incorrect to state that the male can be detained until 14.45 hours on the 14th September unless his detention is lawfully extended. This is because 14.45 hours is 36 hours after the time of arrival at the police station and he can only be detained for 24 hours after his time of arrival unless his detention is lawfully extended. It is incorrect to state that the male can be detained until 15.05 hours on the 14th September unless his detention is lawfully extended. This is incorrect for two reasons. First, the time limit has been calculated from the time of detention rather than the time of arrival. Secondly, the time limit prior to any extensions is 24 hours from the time of arrival. Please review your materials on Police Powers and detention time limits including when those time limits can be extended. You should refer to s.41 and s.42 PACE 1984.

Answer 230

The appeal should be heard as soon as practicable and in any event no later than the business day after it was served unless the Crown Court otherwise directs Correct. Unless the Crown Court otherwise directs, the court officer must arrange for the court to hear the application or appeal as soon as practicable and in any event no later than the business day after it was served. See Crim PR 14.8 (6). Crim PR 14.8 (7) states that the Crown Court may vary a time limit under this rule. Whilst the other answers are plausible, they are each incorrect. It is incorrect to state that the appeal should be heard no later than 24 hours after the application was served unless the Crown Court otherwise directs. This is not the correct time frame set out in the Criminal Procedure Rules. The rule refers to one business day for practical reasons. It wouldn’t be possible for the court to hear the application no later than 24 hours after it was served if, for example, it was served at 5pm on a Friday evening. It is incorrect to state that the appeal should be heard no later than 48 hours after it was served unless the Crown Court otherwise directs. This is not the correct time frame set out in the Criminal Procedure Rules. This timeframe is not practical, it would not allow for the defendant to have a timely hearing in all circumstances. It is incorrect to state that the appeal should be heard no later than the business day after the original decision on bail was made, unless the Crown Court otherwise directs. This is not the correct time frame set out in the Criminal Procedure rules. From a practical point of view, notice of the application must be served prior to the appeal hearing and it may be necessary to take instructions from the client and it is not always possible to be prepared for an appeal hearing this close to the original application. It is incorrect to state that the appeal should be heard no later than seven days after the original decision on bail unless the Crown Court otherwise directs. This is not the correct time frame set out in the Criminal Procedure Rules. The timeframe is not practical, it would not allow for the defendant to have a timely hearing in all the circumstances. Please review your notes on Bail and the procedure for appealing against bail decisions, together with the relevant Criminal Procedure Rules.

Answer 231

Defence counsel should apply to the judge to exclude the witness identification evidence under s.78 PACE 1984. Correct. A breach of Code D would not inevitably lead to the exclusion of the evidence. Defence counsel would have to apply for the evidence to be excluded on the basis that the admission of the evidence would have such an adverse effect on the fairness of the proceedings due to the failure to follow proper procedure. Whilst the other answers might sound plausible, they are each incorrect. It is incorrect to state that the best approach would be to cross examine the witness on the fact that he had not taken part in a formal procedure. Defence counsel could do this, but the evidence would already be before the court. The best approach is to apply to exclude the evidence under s.78 PACE so the jury do not hear it at all. It is incorrect to state that the best approach would be to make a submission of no case to answer. The breach of Code D would not provide an argument that the test in R v Galbraith has been met and the case should be withdrawn from the jury. Defence counsel should use the breach of Code D to argue that the evidence should be excluded from the jury under s.78 PACE. It is incorrect to state that the best approach would be to make the point about the failure to follow proper procedure under Code D in the closing speech. The jury will have already heard the evidence at this point, the better course of action would be to apply for the evidence to be excluded under s.78 PACE so the jury don’t hear it at all. It is incorrect to state that defence counsel should make an application to dismiss the case as an abuse of process. A breach of Code D would not amount to an abuse of process and there would be no merit in making an abuse of process application. Defence counsel should apply to exclude the evidence under s.78 PACE. Please review your materials on Identification evidence, the identification procedure and s.78 PACE.

Answer 232

Yes. You can continue to act but the defendant must not assert his innocence during the trial. Correct. You could continue to act provided you do not mislead the court. A defendant is entitled to put the prosecution to proof and this is a fundamental right under the adversarial system. They cannot at any stage in the course of the proceedings, assert their innocence nor can you do so on their behalf as to do this would be misleading the court CCS 1. Although there is a duty to assist the court this does not override confidentiality. Without the defendant’s consent you cannot notify the court of their recent instructions. Having admitted the offence to you, you cannot continue to act if they raise self-defence at trial.

Answer 233

Under s.36 Criminal Justice and Public Order Act 1994 (‘CJPOA’) a court can draw an adverse inference if your client fails to account for the credit card in her possession provided a special warning is given. Correct. This answer correctly reflects the best advice to provide to your client. As she has been found in possession of the credit card, an adverse inference can be drawn under s.36 CJPOA if she fails to account for having the credit card in her possession. A special warning must be given. Whilst the other answers are plausible, they are each incorrect. It is incorrect to state that the court may draw an adverse inference under s.37 CJPOA if your client fails to account for the possession of the credit card provided a special warning is given. Section 37 CJPOA relates to a suspects failure to account for their presence at the scene not possession of an object. It is correct to state that, under s.36 CJPOA, the court can draw an adverse inference for the clients failure to account for possession of the credit card. It is incorrect to state that no special warning is required where the suspect has legal advice. It is incorrect to state that, under s.37 CJPOA, the court can draw an adverse inference for the client's failure to account for possession of the credit card. Section 37 CJPOA relates to a suspect's failure to account for their presence at the scene not possession of an object. It is also incorrect to state that no special warning is required where the suspect has legal advice. It is incorrect to state that, under s.35 CJPOA, the court can draw an adverse inference for the clients failure to account for possession of the credit card. Section 35 CJPOA relates to silence at trial. Please review your materials on adverse inferences and the relevant sections of the CJPOA.

Answer 234

In determining whether bail should be granted, the court will consider the fact that the woman has previous convictions for violent offences to support the exception to the general right to bail that she is likely to commit further offences whilst on bail. Correct. The question for the court to consider is whether an exception to the general right to bail (under s.4 Bail Act 1976) should apply here. One relevant exception is whether the woman would be likely to commit further offences whilst on bail; here, the fact that she has previous convictions for doing so could be used as evidence to support that she would do so again. Whilst the other answers might be plausible, they are each incorrect. It is incorrect to state that the court will consider the fact that the woman has complied with bail conditions in the past and that this means that none of the exceptions to the general right to bail exist. Whilst the court will consider the fact that woman has complied with bail conditions in the past when making a determination on bail, an exception to the right to bail still exists on the basis that she is likely to commit further offences on bail as evidenced by her previous convictions. It is incorrect to state that the court will consider that all of the exceptions to the general right to bail exist as evidenced by the woman’s previous convictions. The previous convictions may be used as evidence to support the exception that she will commit further offences whilst on bail but they would not be evidence to support the other exceptions, such as interfering with witnesses or failing to surrender. It is incorrect to state that the court will consider the fact that the woman has complied with bail conditions in the past and therefore there is no real prospect that the woman would receive a custodial sentence in this case. The nature of the offence and her previous convictions means that a custodial sentence is likely in this case. It is incorrect to state that bail cannot be granted because there is a real prospect of the woman receiving a custodial sentence. Whilst there is a prospect of the woman receiving a custodial sentence, this is not enough to refuse bail on its own. The court will still need to consider the general right to bail and whether any exceptions apply. Please review your materials on Bail and the exceptions to the general right to bail under s.4 Bail Act 1976.

Answer 235

The police can proceed with a video identification procedure without the client's consent. Correct. This answer is correct because a video identification procedure can be arranged without the client’s consent. The police will seek the client’s consent but if this cannot be obtained then they will arrange for an existing image of your client to be used for the video identification procedure. In such circumstances, the police are not obliged to give the suspect an opportunity to view the images used in that video identification procedure. On the facts of this case, we are told that the victim of the assault has provided a description of the person who carried out the offence and that the suspect matches that description. This is, therefore, a case where a video identification procedure would serve a useful purpose. Whilst the other answers are plausible, they are all incorrect. It is incorrect to state that the police cannot proceed with any identification procedure without the client’s consent. As mentioned above, the police do not require the client’s consent in order to proceed. It is correct to state that the police can proceed with an identification parade. It is incorrect to state that they are unable to proceed with a video identification procedure due to the lack of consent from the suspect. It is correct to state that the police can proceed with a group identification. It is incorrect to state that the police are unable to proceed with a video identification procedure due to the lack of consent from the suspect. Whilst the police can proceed by arranging a confrontation between the witness and the suspect, this is unlikely to be appropriate in this case as the witness is the victim of the offence. It is also incorrect to state that the police cannot proceed with any other form of identification procedure without the client’s consent. Please review your materials on Identification procedures including what happens in circumstances where a suspect refuses to take part in a video identification procedure and COP D 3.21.

Answer 236

The Judge should withdraw the case from the jury and direct an acquittal. Correct. Although the judge could allow the case to go to the jury, the witness has conceded that she cannot be sure of the identification, and as such a jury properly directed could not safely convict. The most appropriate course of action is therefore to withdraw the case from the jury under the R v Galbraith principles and direct an acquittal. Whilst the other answers might sound plausible, they are each incorrect. It is incorrect to state that the Judge should allow the case to go to the jury but give a Turnbull warning as the witness has conceded that she cannot be sure of the identification during her evidence, as such a jury properly directed should not convict. The case should be withdrawn from the jury and they should be directed to acquit. It is incorrect to state that the Judge should allow the case to go to the jury but exclude the evidence of identification. There are a number of reasons why this is incorrect. We are told that the identification evidence is the only evidence against the defendant so there would be nothing left for the jury to consider. The jury has also heard the identification evidence and the witness conceded that she cannot be sure of the identification, as such a jury properly directed could not safely convict. The case should be withdrawn from the jury and they should be directed to acquit. It is incorrect to state that the Judge should withdraw the case from the jury and direct the jury to convict. The witness has conceded that she cannot be sure of the identification therefore there is no basis on which the jury could properly convict the defendant. The Judge should withdraw the case from the jury and they should be directed to acquit. It is incorrect to state that the Judge should withdraw the case from the jury unless they feel that the defendant would receive a fair trial if they gave a Turnbull warning. The witness has conceded that she cannot be sure of the identification, as such a jury properly directed could not convict. The case should be withdrawn from the jury and they should be directed to acquit. Please review your materials on Identification evidence, the Turnbull warning and the test where there is no case to answer in R v Galbraith.

Answer 237

The defendant will have a defence to the offence of failing to surrender to custody, if she can prove that she had a reasonable cause by being in hospital. Correct. The offence is committed if the defendant fails to surrender to custody without reasonable cause. The burden is on the defendant to prove that she had a reasonable cause for failing to surrender on the balance of probabilities. If the defendant can prove this on the balance of probabilities, she will not be convicted of the offence. If the defendant is unable to prove that she had reasonable cause for failing to surrender, she will be convicted and sentenced for the offence and it can be considered by the court in any future bail applications. Whilst the other answers may sound plausible, they are each incorrect. It is incorrect to state that it is for the prosecution to prove that the defendant was not in the hospital at the time of the hearing. The defendant bears the burden of proving that they were in the hospital and therefore had a reasonable cause for failing to surrender. It is incorrect to state that it is for the prosecution to prove that the defendant did not have a reasonable cause for failing to surrender. The defendant bears the burden of proving that they were in the hospital and therefore had a reasonable cause for failing to surrender. It is incorrect to state that there is no need for the defendant to prove anything. As the defendant is seeking to rely on having a reasonable cause for failing to surrender, they must prove what that reasonable cause was. Whilst the defendant’s solicitor is likely to make representations about the defendant’s reasonable cause for failing to surrender, the court are likely to request proof of the hospital attendance. Therefore, this is not the single best answer. Please review your materials on bail, the offence of failure to surrender and who bears the burden of proving reasonable cause. Please also review your materials on the relationship between a conviction for failure to surrender and any subsequent bail applications.

Answer 238

Your client will enter his plea of not guilty, the court will then go through the allocation procedure to determine the most suitable venue for trial. Correct. As your client is raising self-defence you should advise him to enter a not guitly plea in the Magistrates’ court. Section 20 Offences Against the Person Act 1861 is an either way offence so the court will need to go through the allocation procedure and determine the most suitable venue. Whilst the other answers sound plausible, they are each incorrect. It is incorrect to state that the court will go through the allocation procedure and then determine that the trial must take place in the magistrates’ court because of the nature of the offence. The nature of the offence does not mean that the court must allocate the trial to the magistrates’ court. There are a number of factors that will be considered during the allocation process in order to determine the most suitable venue. It is incorrect to state that the court will go through the allocation procedure and then determine that the trial must take place in the crown court because of the nature of the offence. The nature of the offence does not mean that the court must allocate the trial to the crown court. There are a number of factors that will be considered during the allocation process in order to determine the most suitable venue. It is incorrect to state that the court will go through the allocation procedure and determine whether the trial can take place on the same day or a future date. The trial will not be able to take place on the same day as the parties will not be prepared to proceed with a trial of this nature and the witnesses are unlikely to be in attendance. It is incorrect to state that the client must enter his plea at the crown court as the magistrates’ court are unable to deal with this offence. Section 20 is an either way offence not an indictable only offence; this means it can either be heard at the magistrates’ court or the crown court. Your client will be expected to enter a plea and then the court will go through the allocation process to determine the most suitable venue for the trial. Please review your materials on plea before venue hearings and the classification of offences. You should review the procedure that takes place at a plea before venue hearing and revisit your materials on the allocation process.

Answer 239

The Judge will give the jury a special warning in relation to the identification evidence as the case against her rests substantially upon a disputed identification. Correct. As the case rests substantially on disputed identification evidence the Judge should give the jury a special warning in accordance with R v Turnbull. Whilst the other answers sound plausible, they are each incorrect. It is incorrect to state that the Judge will not give the jury a special warning as the case against her is not wholly based upon disputed identification evidence. The guidelines in R v Turnbull state that a special warning should be given where the case rests substantially on disputed identification evidence, not wholly on it. It is incorrect to state that the Judge should withdraw the evidence from the jury and direct them to acquit if they consider the identification evidence to be weak. If the Judge was of the view that the identification evidence is weak but supported by other evidence, they would not withdraw it. The Judge should give the jury the special warning in accordance with the case of R v Turnbull. If the Judge considered the identification evidence to be weak and the case was unsupported by other evidence, then they would likely withdraw it from the jury and direct them to acquit. It is incorrect to state that the Judge will direct the jury to consider whether the defendant has proved that the identification evidence is weak. Although the defendant disputes the identification evidence, the defence does not have a burden of proof. It is for the prosecution to prove the case against the defendant beyond reasonable doubt. As the identification evidence is disputed, the Judge should give the jury a special warning in accordance with R v Turnbull. It is incorrect to state that the Judge will not give a special warning if they consider the identification evidence to be strong. As the identification evidence is disputed, the Judge should give a special warning in accordance with R v Turnbull. Please review your materials on identification evidence and the Turnbull guidelines.

Answer 240

Your client’s response does amount to a confession because it is partly adverse to him. Correct. This would amount to a confession as his mother asks him if he committed the offence and responded ‘maybe.’ That statement is partly adverse to him and therefore falls within the definition of a confession under s. 82 Police and Criminal Evidence Act 1984 (PACE). Whilst the other answer options sound plausible, they are each incorrect. It is incorrect to state that your client’s response does not amount to a confession because it is equivocal. Whilst the response ‘maybe’ is equivocal, it is partly adverse to your client and therefore falls within the definition of a confession under s.82 PACE. It is incorrect to state that your client’s response does not amount to a confession because it has not been made to a person in authority. A confession does not have to be made to a person in authority. Refer to the full definition under s.82 PACE. It is incorrect to state that your client’s response amounts to a confession because it is an unequivocal acceptance of guilt. The word ‘maybe’ is not an unequivocal statement or an acceptance of guilt. Your client’s response is a confession because the statement made is partly adverse to him and falls within the definition of a confession under s.82 PACE. It is incorrect to state that your client’s response does not amount to a confession because he has not written it down or signed it. There is no requirement for your client to have written the statement down and signed it in order for it to be considered a confession. Please review your materials on confessions and the definition of a confession under s.82 PACE.

Answer 241

There are no obvious reasonable grounds to delay access to legal advice. The decision may be unlawful on that basis. Correct. For a delay to be lawful, the decision making officer must have reasonable grounds to believe that allowing access to legal advice will lead to the solicitor inadvertently or otherwise passing on information likely to lead to one of the consequences in s. 58(8) or 58(8A) PACE 1984. No such risk appears to apply here. Please review your materials on the rights of a suspect at the police station, in particular the right to access legal advice s.58 PACE 1984.

Answer 242

The court must activate the custodial sentence unless it would be unjust in all the circumstances to do so. This is correct. See Criminal Justice Act 2003, Sch.12 (8) (2) (a) which provides for the options available to the court when dealing with a breach of suspended sentence. The court must activate the custodial sentence unless it would be unjust in all the circumstances to do so. Whether there are exceptional circumstances which remove the requirement to activate the original sentence is not the correct test. The court may consider reducing the original sentence to account for partial completion of the community order, but it does not have to do so. If the court does not activate the sentence, it may consider making the community order more onerous.

Answer 243

Sir/Ma’am This is correct. A District Judge should be referred to as sir/ma’am this is the correct form of address.

Answer 244

The statement will be read because although it is hearsay the maker is dead and therefore it is prima facie admissible. The statement is hearsay because it goes towards the truth of what the occupier says: namely that the burglary happened in the way described. It goes towards the truth of what the occupier says but not that the burglar was the defendant. Rather, it is evidence that the burglary happened in the way described. These are not necessarily facts in issue but the statement itself is still hearsay. Given the maker is dead, the statement meets the criteria for admission under the statutory rules. There are no grounds to argue against its admission. The facts are not in issue. There is no prejudice to the defendant as the occupier’s evidence would not add weight to the issue that the defendant was the burglar. [Note – in practice the defence might have agreed to the statement being read in any event under s 9 CJA 1967. This is not an option in this question. Always answer the question based on what it is asking and the options available.]

Answer 245

The Youth Court will impose a referral order as this is the first offence and the defendant has entered a plea of guilty. A referral order is the mandatory sentence in a youth court where the youth has committed and offence for the first time and has pleaded guilty to an imprisonable offence. There are exceptions, namely where a custodial sentence or discharge are more appropriate. For the case to be committed as a grave crime there must be a real prospect of the sentence being in excess of two years which will be unlikely here. That robbery is indictable only is not relevant as we are dealing with a youth. As the defendant is aged 15 there are no restrictions on the imposition of a DTO if the custody threshold is met.

Answer 246

Important matter in issue between the defendant and prosecution This is correct. It is an important matter in issue between the defendant and prosecution as the prosecution will state it shows propensity to commit the offence of which she is charged. It would be very unusual for a defendant to agree a more serious previous conviction and a similar neighbour dispute to be admitted as bad character as this is likely to be one of the factors towards a conviction. It is not an offence where important information needs to be relied upon to understand the current offence. Section 103(1) is not a gateway to admit bad character. Rather it is to clarify how gateway 101(1)(d) can be satisfied. The gateway under s 101(1)(e), a matter in issue between the defendant and a co-defendant, is a gateway generally invoked by the defence.

Answer 247

Your client can appeal the sentence provided he lodges a notice of appeal within 15 business days from the date of sentence to the magistrates' court. Your client cannot appeal against the conviction because a guilty plea has been entered and therefore the offence has been admitted. However, the defendant can appeal sentence as of right. The notice of appeal does not need detailed grounds. However, it should set out the circumstances of the appeal. The correct procedure is that the notice of appeal must be lodged at the magistrates’ court within 15 business days of the sentence hearing date.

Answer 248

The court will have to impose a mandatory minimum sentence of three years as this will be the third burglary conviction for this defendant. This is correct. The court cannot impose a mandatory minimum sentence where one of the convictions is for burglary (non-dwelling). The mandatory minimum period is not 7 years. The previous convictions do not need to be in the last 5 years for the minimum sentence provisions to apply. The defendant need not have pleaded guilty to all previous relevant offences for the minimum sentence provisions to apply. - This is incorrect. In order to impose the mandatory minimum sentence of three years, all convictions must be for dwelling house burglary. Please review your materials on mandatory minimum sentences.

Answer 249

The aggravating factors present will mean the offence passes the custodial threshold. This is correct. Burglary is an either-way offence. Here the defendant has been convicted in the Crown Court. Whether a custodial sentence is imposed will depend upon whether the offence passes the custody threshold. A domestic burglary of this nature along with the previous conviction will be so serious that that neither a fine alone nor a community sentence can be justified for the offence. The maximum of 6 months is only relevant in the magistrates’ court where the powers are restricted. The question says jury so this must be in the Crown Court. The mandatory minimum sentence of 3 years is for a third domestic burglary so there would need to be two relevant previous convictions. Commission of the offence whilst intoxicated is an aggravating not a mitigating factor (although genuine efforts to address the addiction can be a mitigating factor).

Answer 250

Her family situation and financial difficulties are likely to be a mitigating factor, the previous conviction is likely to be an aggravating factor. The fact that she has a previous conviction is an aggravating factor. The amount of money would not be viewed as an aggravating factor in this scenario. Her financial and family situation would likely be viewed as mitigating factors.

Answer 251

You should make a submission of no case to answer as the prosecution has not proved all the elements of theft This is correct. Where the prosecution case is weak, the defence may make an application to the judge (in the Crown Court) or to the magistrates or District Judge (in the magistrates’ court) to dismiss the case because there is no case to answer. The case of R v Galbraith set out the test for the court to consider when hearing an application for ‘no case to answer’. The submission has two limbs as follows: * that there is no evidence that a crime has been committed by the defendant; or * that there is some evidence before the court, but it is tenuous or inconsistent in nature. Here the argument would be that there is no evidence that the property belonged to another so there is no case to answer. If the submission is successful, the case will come to an end. If unsuccessful then you might call D and his brother to rebut the issue of dishonesty.

Answer 252

The officer cannot give evidence of what the couple said to him as it is hearsay and is not admissible on the basis that the couple cannot be identified to the court’s satisfaction. Correct – this would be hearsay evidence as the prosecution are seeking to prove that the defendant is a burglar and there is a statement of that matter in the communication as the couple have said that a burglar lives at the defendant’s address and they said it intending that the police officers would believe that a burglar lived at that address. Hearsay evidence would be inadmissible unless one of the exceptions to this rule applies. The issue here is that the police have not identified the maker of the statement to the satisfaction of the court and therefore should not be admitted.

Answer 253

The court will send the matter to the Crown Court for trial as a sentence substantially beyond their maximum 2 year sentencing powers is a realistic possibility This is correct. This answer reflects the test for whether grave crimes should be sent to the CC and the sentencing guidelines suggest a realistic possibility of a sentence substantially beyond 2 years custody; the IOJ test is not used where a youth is charged alone; the court could retain jurisdiction and commit later; it is not obliged to.

Answer 254

The wife is a competent witness, but cannot be compelled to give evidence against her husband for this offence. The wife is a competent witness for the prosecution (s. 53(1) YJCEA 1999). However, she can only be compelled to give evidence against her husband if any of the exceptions in s. 80(3) PACE 1984 apply (s.80 (2A)(b) PACE). None of the exceptions in s. 80(3) are relevant on the facts and, therefore, the wife cannot be compelled to give evidence against her husband. She can, in some circumstances, be compelled (i.e., where the offence is specified under s. 80 PACE). As the wife is not accused of any offence, no adverse inference may be drawn against her.

Answer 255

An application for special measures to allow the witness to give evidence from behind a screen under s.23 Youth Justice and Criminal Evidence Act 1999. This is correct. An application for special measures for the witness to give evidence from behind screens is the most appropriate application. The evidence would not be agreed or read under either s.10 or s.9 Criminal Justice Act. The other special measures would not be the most appropriate in the circumstances as they are more appropriate for vulnerable witnesses rather than intimidated witnesses.

Answer 256

Your client will be remitted to the Youth Court because the co-defendant is not having a trial. This is correct. The only reason that the youth is in the magistrates’ court is because they are jointly charged with the adult. Without the adult who has been committed to the Crown Court they cannot stay there. The youth can only be sent to either the Crown Court or the youth court. The youth’s circumstances do not satisfy any of the criteria to be sent to the Crown Court. It is not homicide, firearms etc. Section 20 OAPA is not a grave crime as it is not punishable with 14 years as an adult. As the adult has pleaded guilty there will be no joint trial. The interests of justice test would only be applied where both the adult and youth plead not guilty, and the adult is sent to the Crown Court for trial.

Answer 257

Conviction is unsafe This is correct. A point of law of general importance is a consideration on an appeal to the Supreme Court from the Court of Appeal. A conviction may be unfair or unjust but the ground is that it must be unsafe. Likewise, the conviction can be considered an error of law or a misdirection but the ground is that the conviction is unsafe. A conviction is unsafe where there is an error of law, the judge has misdirected the jury or failed to give a relevant direction, there was bias that would have affected a jury’s decision or the judge was wrong in their exercise of discretion to exclude or admit evidence.

Answer 258

The solicitor should withdraw from acting for the client, but she cannot notify the court or prosecution as to the reasons for withdrawing. This is correct. This question tests the knowledge of professional conduct in criminal litigation and the solicitor's duty not to mislead the court alongside their duty of confidentiality to the client. The solicitor must cease to act as they could not continue and follow the client’s instructions as it would put the solicitor in breach of their duty to not mislead the court. The solicitor cannot inform the court of the reason for withdrawing otherwise they would breach their duty of confidentiality owed to the client.

Answer 259

After serving one year in custody. This question tests your understanding of sentencing and the difference between consecutive and concurrent custodial sentences. Sentences which run consecutively will be served one after the other but sentences served concurrently will be served alongside each other. In this example the two ssentences for the s.20 offences will be served one after the other but the sentence for s.47 will be served alongside the sentences for the s.20 offences. This means that the total sentence will equate to two years but as the prisoner will only serve half of their sentence in custody, they will be released from prison after serving one year in custody.

Answer 260

Although the burglary and theft convictions show a propensity to commit offences of the type charged, the court will not admit convictions to bolster an otherwise weak case. This is correct. A defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of an offence of the same description as the one with which he is charged, or an offence of the same category as the one with which he is charged. The theft and burglary convictions would be covered by this. However, unless there is other evidence the court will be very unlikely to admit the convictions.

Answer 261

The decision to delay cannot lawfully be made by an officer of the rank of Constable: it must be made by an officer of at least the rank of Inspector. This is a CLP question, which assesses your understanding of the police power to delay the suspect's right to have someone informed under s.56 Police and Criminal Evidence Act 1984. The question focuses on the procedural aspect of which ranking officer has the authority to delay the right. Under s. 56 (2) PACE 1984, one of the criteria for a delay to intimation to be lawful is that the delay must be authorised by an officer of at least the rank of Inspector.

Answer 262

No, an identification procedure would serve no useful purpose in this case because the man is known to the witness. This is a CLP question, which assesses your knowledge of identification procedures carried out at the police station stage. The question tests your understanding of when an identification procedure, under Code of Practice D Police and Criminal Evidence Act 1984, would be carried out. There will be no doubt as to the witness’s ability to correctly identify the man as he is his brother.

Answer 263

During the police interview the suspect has a right to remain silent. However, if she fails to raise self defence now, and then seeks to rely on it later, an adverse inference may be drawn against her at trial. This is a CLP question, which assesses your understanding of advising a suspect about their options for their police interview. A suspect has the right to remain silent during their police interview and this question tests your understanding of when you may advise a client to exercise that right and when/why an adverse inference may be drawn if the suspect decides to remain silent. Under s.34 Criminal Justice and Public Order Act 1994 (CJPOA 1994), the court may draw an adverse inference if a suspect fails to mention something during their interview that they later rely on in their defence at trial. The adverse inference will only be drawn in these circumstances if the thing that they failed to mention was reasonably expected to be in their knowledge at the time of the interview.

Answer 264

You should ask the police to suspend the interview in order for you to have a further private consultation with your client. You should notify the client that you are unable to continue to act for them as they have advanced a positive defence which you know to be false. This is a CLP question, which assesses your understanding of advising a suspect at the police station. This question also tests your understanding of professional conduct issues that may arise in a criminal litigation context, namely the duty owed not to mislead the court and the duty of confidentiality owed to your client, even after you cease to act for them. The best course of action would be to ask the police to suspend the interview and cease to act for the client as they have advanced a positive defence. You have a duty not to mislead the court which begins at the police station stage. You cannot allow the client to put forward a positive defence when they have told you that they committed the offence.

Answer 265

Send a copy of the completed form to the Crown Court, the magistrates’ court and the prosecutor as soon as practicable after the decision to remand. This is a CLP question, which assesses your understanding of the procedure for appealing a decision on bail. Where the magistrates’ court has withheld bail, the defendant should appeal to the Crown Court by submitting a notice of application to appeal the decision on bail as soon as practicable after the magistrates’ court decision. The application should be submitted to the Crown Court, the magistrates’ court and the prosecutor. This is set out at Criminal Procedure Rule 14.8. The incorrect answers here set out the incorrect timescale for sending the completed form to the relevant parties.

Answer 266

The matter will be dealt with in the Crown Court as robbery is an indictable only offence. This is a CLP question, which assesses your understanding of the classification of offences and the jurisdictions of the different courts. The matter will be dealt with in the Crown Court as robbery is an indictable only offence. It does not matter that the value of the item stolen is low, the injury caused is minimal or the fact that the defendant has never been in trouble before. These factors do not change the classification of the offence.

Answer 267

Before making a decision on allocation, the court will hear from the prosecution about any previous convictions and give both the prosecution and the defence the opportunity to make representations regarding which court would be more suitable. This is a CLP question, which assesses your understanding of the allocation procedure for either-way offences. Allocation is a process that the magistrates’ must carry out for either-way offences. They will consider s.19 of the Magistrates’ Court Act 1980 which states that they should hear from the prosecution regarding the previous convictions and both parties with any representations they wish to make regarding venue. They are also likely to consider the sentencing guidelines alongside any representations made by both parties.

Answer 268

Case management is to be conducted when a not guilty plea has been entered in order to progress the case efficiently to trial. This is a CLP question, which assesses your understanding of when case management should take place. A case management form will be completed at the first hearing in all cases when a not guilty plea has been entered, in order to identify the issues in the case and prepare the matter for effective trial. This is part of furthering the overriding objective to deal with matters expeditiously. Case management is not required in the same way if the client enters a guilty plea.

Answer 269

The interview process was flawed, and the man may therefore ask the court to consider whether this would have such an adverse effect on the fairness of proceedings that the court should exclude it. This is a CLP question, which assesses your understanding of confession evidence and the admissibility of confession evidence at trial. There appear to have been a number of procedural failures on the part of the police when conducting this interview. These procedural failures may mean that the inclusion of the confession would have such an adverse effect on the fairness of proceedings that the court should exclude it. The man could rely on s.78 Police and Criminal Evidence Act 1984 (PACE 1984) in order to exclude the evidence. The procedural failures would not amount to oppression. There may be an argument that the procedural errors mean that the man could argue that the things said or done would render the confession unreliable but this is not his strongest argument, s.78 PACE is more likely to succeed in this case.

Answer 270

This is a CLP question, which assesses your understanding of confession evidence and the admissibility of confession evidence at trial. There appear to have been a number of procedural failures on the part of the police when conducting this interview. These procedural failures may mean that the inclusion of the confession would have such an adverse effect on the fairness of proceedings that the court should exclude it. The man could rely on s.78 Police and Criminal Evidence Act 1984 (PACE 1984) in order to exclude the evidence. The procedural failures would not amount to oppression. There may be an argument that the procedural errors mean that the man could argue that the things said or done would render the confession unreliable but this is not his strongest argument, s.78 PACE is more likely to succeed in this case.

Answer 271

The judge decides that the identification evidence merits a warning to the jury under the Turnbull guidelines. This is a CLP question, which assesses your understanding of when a Turnbull warning would be required for identification evidence. There are sufficient potential sources of error in the identification evidence such that it would be appropriate for a judge to issue a Turnbull warning. However, there is also other evidence against the defendant, so it would not be appropriate to withdraw the case from the jury.

Answer 272

The prosecution will be able to rely on the burglary conviction because it is the same offence as the one before the court. They will be able to introduce the theft conviction because it is in the same category of offences. This is a CLP question, which assesses your understanding of bad character evidence and when previous convictions may be admitted in evidence to show a propensity to commit offence of the type/kind charged. Both offences will be admitted via the same offence and same category respectively. The prosecution will seek to adduce these convictions under s.101(1)(d ) Criminal Justice Act 2003. There has not been a significant passage of time to mean that it would be unjust for the court to admit these previous convictions. The previous convictions only need to demonstrate a propensity for the defendant to commit offences of the same kind/type as the one with which they are now charged, the previous convictions do not need to be strikingly similar.

Answer 273

The daughter is competent and compellable to give evidence for the prosecution as she is an ordinary witness. This is a CLP question, which assesses your understanding of witness competence and compellability. This answer reflects the position in relation to the competence and compellability of an ordinary witness in respect of the prosecution. The fact that the defendant is her father or the victim is her brother, does not prevent her from being treated as an ordinary witness in this case.

Answer 274

You should advise the client to bring the previous convictions to the court’s attention. If the client refuses to do this, you should cease acting as you owe a duty to the court. If the client allows you to notify the court of her previous convictions, you should make representations regarding the age of the convictions and ask the court to treat the client as a person of good character. This is a CLP question, which assesses your understanding of advising your client and your professional conduct duties. You owe a duty not to mislead the court. You cannot lie about the error and continue to act. You should try to persuade your client to allow you to disclose the offences to the court but if your client refuses then you must cease to act. You cannot notify the court why you are ceasing to act as you owe a continued duty of confidentiality to your client.

Answer 275

The period of suspension must be between six months and 2 years. This is a CLP question, which assesses your knowledge of the operational period of a suspended sentence. The operation period for a suspended sentence must be not less than six months and not more than two years.

Answer 276

Yes. It is unlikely that the prosecution would accept the defence version of events. The difference between the two versions would make a material difference to sentence meaning that a Newton hearing would be required. This is a CLP question, which assesses your understanding of when a Newton hearing would be required. As the defence version of events would make a material difference to sentence. The defence is alleging that the defendant did not cause the injuries so a Newton hearing should be held.

Answer 277

The defendant can apply for leave to appeal against conviction and sentence. The defence counsel must submit an appeal notice and grounds of appeal. This is a CLP question, which assesses your understanding of the procedure for appealing against a decision made in the Crown Court. As the defendant was found guilty after trial, he can appeal against both conviction and sentence. The defence counsel (or the defendant) must submit an appeal notice together with the grounds for appeal to be considered by the Court of Appeal. (15 business days for notice of appeal from sentence regardless if for sentence or conviction and 28 days for grounds of appeal from conviction/sentence respectively)

Answer 278

The youth is charged with a grave crime and a sentence substantially exceeding two years needs to be available. This is a CLP question, which assesses your understanding of youth court jurisdiction when a youth is jointly charged with an adult. The court has to consider that the offence is a grave crime and it must think that a sentence of more than two years is likely to be imposed. This is the only basis on which the case would be heard in the Crown Court, based on the facts available.

Answer 279

the suspect will be taken to the nearest designated police station and on arrival they will be taken to the custody suite and presented to the custody officer, whom we have just said must be somebody of at least the rank of sergeant. The custody sergeant will first need to make a decision as to whether it is necessary to detain the suspect to enable the police to investigate the offence more thoroughly.

Answer 280

Constable Sergeant: min for custody officer (detain in custody) Inspector: delay right to inform someone + detention review Chief Inspector Superintendent: delay right to legal advice + removal of solicitor Chief Superintendent

Answer 281

the investigating officer may also be referred to as the interviewing officer or the officer in the case. can be a police officer of any rank; is usually the officer who is in charge of investigating that particular offence, also referred to as the ‘Officer In the Case’ (‘OIC’); is the officer the suspect's legal representative would speak to at the police station to obtain pre-interview disclosure; will most likely lead the interview.

Answer 282

are that it is necessary to secure and preserve evidence or to obtain evidence by way of questioning. If the decision to detain is made, then the suspect will be provided with their rights and a custody record will be opened.

Answer 283

To free and independent legal advice. To have somebody notified of the arrest and To consult with the Codes of Practice.

Answer 284

are taken from a pool of local experienced criminal practitioners, they do not work for the police. The custody sergeant will contact the DSCC, who will in turn contact the solicitor. Payments to the solicitor will be undertaken by the relevant government funding body, provided the solicitor possesses the requisite criminal contract.

Answer 285

There are situations where the police have the power to delay somebody's access to legal advice. That power is contained within PACE Section 58, and this is what we mean when we refer to the authority. The criteria that must be met to allow the police to exercise this delay is that it must be provided by a senior police officer of the rank of superintendent, and their authorisation can only be given if the offence, which the suspect has been arrested, is indictable. This means either an either way or indictable only offence. Most importantly, any superintendent must have reasonable grounds to believe that by allowing the suspect to have access to this solicitor could lead to one of the outcomes set out in Section 58 PACE. The grounds must be relevant to a specific solicitor, and it should not prevent the suspect from having legal advice provided by an alternative advisor. there are limits as to how long the delay can be enforced: 36 hours is the maximum and there are also implications as to whether or not inferences might be drawn later at trial if access to legal advice has been withheld.

Answer 286

which the solicitor has a right to consult as soon as practicable after their arrival at the police station. It should contain everything that has happened to, been said to or been said by the detainee.

Answer 287

the review officer who is at least the rank of inspector and not the custody officer, must be satisfied that detention is still necessary.

Answer 288

the maximum period of detention without charge is 24 hours from “the relevant time”. The relevant time is the time that the person arrested first arrives at the police station or 24 hours after arrest, whichever is the sooner. 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. - For example, the superintendent must have reasonable grounds to believe that detention is still necessary. - The offence must be indictable and it must be being conducted diligently and expeditiously. 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.

Answer 289

It is, however, worth noting that it is not a right to a telephone call by the suspect to that individual. The criteria that must be met in order to withhold this right again demands the authorisation of an officer, but this needs to be an officer of a slightly lower rank, namely an inspector, and this is because it is a less fundamental right. These, again, are that the grounds are that the offence indictable and that there is justification for withholding the right set out in the grounds in Section 56. Again, the exercise demands that the withholding of the right can only continue for as long as the grounds continue. So once, for example, the search has taken place, then the person should be notified.

Answer 290

An additional safeguard is that of the review process, once the custody sergeant has decided that detention is necessary and thus authorised it. A constant review needs to take place to ensure that those grounds still exist and this review process is conducted by somebody more senior than the custody sergeant. PACE stipulates that it needs to be somebody of at least the rank of inspector. The first review should take place no later than six hours after the detention was first authorised, with the further reviews taking place no later than nine hours after. It is also worth noting that no extension to the 24 hour detention limit can take place until the second review has taken place. During all of their time in detention, suspects should be provided with food and drink as set out in COP C.

Answer 291

The appropriate adult is there to assist the detainee to ensure that they understand what is happening and to provide support, advice and assist the detainee. The appropriate adult is also able to request legal advice. There are certain limitations on who is able to act as an appropriate adult; for example, the solicitor cannot be both the appropriate adult as well as providing legal advice. Nor can anybody who is involved in the investigation, such as a witness or a victim. This can often happen where the family members are involved. The appropriate adult should be present during the interview and also whenever the person is charged or being spoken to about involvement and an identification procedure. There is no duty of confidentiality, and their role is separate to that of the legal adviser subject to the limits set out. Many appropriate adults will be the child's parent, guardian or members of the local authority youth offending team.

Answer 292

There are a number of different types of procedures and these can be located in PACE COP D along with the relevant annexes. · The first type of procedure is known as a VIPER. · The second is a parade where the suspect will physically stand in a line-up, along with a number of other suspects. · There are also group identification procedures which might take place in a shopping centre · Finally a confrontation. All of these procedures can only take place if the suspect is actually known to the police. In circumstances where the suspect is not yet known, the witness could be shown photographs to see if they are able to identify somebody or taken to a particular place to see if they are able to point out a suspected person to a police officer. It is important to note that whenever ID is an issue in a case and the identification is disputed by the suspect, some form of visual identification procedure must be held. For example, on a VIPER, only one eyewitness may see a set of images at a time or in an ID parade, it should consist of at least eight people in addition to the suspect. If only six additional people were involved, this would be a breach.

Answer 293

Then a decision will be made as to whether or not the suspect will or will not be charged with the offence, if they are charged with the offence, then they will appear at the relevant magistrates’ court. Often, they will be bailed to appear at court on a later date, however, it is possible for the custody sergeant to detain them in custody if they consider there are grounds for the bail to be refused.

Answer 294

First, we need to consider what is a police interview and interview is defined in COP C 11.1A as the questioning of a person about their involvement or suspected involvement in a criminal offence. Therefore, if a police officer is speaking to an individual about the possibility of their having committed a criminal offence, this will be an interview. Once it satisfies the definition of an interview, there are certain set procedures which must take place. For example, a suspect must be cautioned so that they are aware of the fact that anything they are about to say may become evidence in a case against them at a later stage. As a result, they should also therefore be allowed to consult with a solicitor. Interviews should only take place in a police station and a record should be kept of what is said, usually through audio or visual recording. But if that's not possible, then by way of a contemporaneous note. If the suspect has exercised their right to free and independent legal advice, then the solicitor will often attend the police station in readiness for the interview (although there are some limitations about whether this may be limited to telephone advice, depending on the seriousness of the offence).

Answer 295

Information can be obtained both from the officer in person and also from reviewing the custody record; solicitors are entitled to see the custody record under COP C 2.4. But there is no obligation on the police to provide this information. At this stage. The information that must be provided is limited to that contained and COP C namely sufficient information to enable them to understand the nature of any such offence and why the suspect is suspected of committing it.

Answer 296

· The first is to answer the questions that are asked. · The second is to make no comment in response to all questions. · And the third is to hand in a prepared statement at the beginning of the interview and then make no further comment.

Answer 297

This caution reflects the inference under section 34 of the statute, which allows for an inference to be drawn when a defendant relies on a fact in their defence at trial, which they did not mention when questioned, but which it would have been reasonable to have mentioned. Obvious examples of this might be acting in self defence or relying on an alibi, but it can simply be denying any involvement or denying being present at the scene of a crime as alleged. Whether or not it was reasonable is a matter for the jury or for the magistrates and they are entitled to take into account a number of factors, this could include reliance on legal advice, which may be put forward by the defendant as a reason for their remaining silent. However, there must be other evidence. A court cannot convict somebody purely on the fact that they have remained silent.

Answer 298

In order for these inferences to be drawn, the officer conducts in the interview must get the suspect the special warning, explaining what they wish them to account for and why the officer thinks that that object, mark, etcetera, is significant or relevant to the suspect's participation in the offence under investigation. Unlike Section 34, there is no question of reasonableness. Both inferences under sections 36 and 37 arise from arrest and therefore the object must be on the suspect at the time of their arrest or the suspect is in the place of arrest, which is linked to their participation in the crime. If the case never gets to trial or if the defendant pleads guilty, then an adverse inference is irrelevant.

Answer 299

is a very serious step and one which can only be authorised by a superintendent in very specific circumstances.

Answer 300

During their time in the police station, solicitors may also be required to advise their clients on whether or not they should provide samples to the police or whether or not to participate in identification procedures, given that a refusal to do either could lead to inferences being drawn at trial.

Answer 301

they must be brought before the next available court.

Answer 302

the initial details of the case against them.

Answer 303

When appearing before the magistrates for an either way offence, a process known as plea before venue will be undertaken. This asks the defendant to indicate whether or not they will be pleading guilty or not guilty. The defendant is also entitled to not give an indication; in which case the court will proceed as if they had indicated not guilty. If the defendant indicates that they will plead guilty, then the court will proceed as if the defendant is now convicted and needs to be sentenced. There is a presumption that the magistrates will be able to sentence the offender unless their powers are insufficient. When dealing with an either way offence, their powers here are six months, for one and up to 12 months for two or more either way offences where the sentences run consecutively. The defendant should have been warned about the possibility of being sent to the Crown Court for sentence as part of the plea before venue process. If the magistrates are happy to sentence, then this can take place either again at the first hearing or, alternatively, the matter could be adjourned to enable a pre-sentence report to be prepared by the probation service. If the matter is to be adjourned, then the court will have to consider the question of bail.

Answer 304

The test for allocation is located in Section 19 of the Magistrates’ Courts Act 1980, and it says that in determining which court should hear the trial the magistrates should take into account the nature and seriousness of the offence and also the magistrates’ sentencing powers. The magistrates will hear representations from both the prosecution and the defence. The prosecution will outline the facts of the case and the defendant's offending history, if any and will make submissions as to where the trial should be held consistent with the allocation guidelines. The defence can also make submissions as to venue. Where the defence agree with the prosecution It will be usually a very quick process. However, if the prosecution, for example, submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller and more persuasive submissions on this point. The court will be told about previous convictions. This is because previous convictions are a statutory aggravating factor in sentencing and therefore will have an influence on whether or not the sentencing powers might be sufficient.

Answer 305

If the magistrates consider that the case is suitable to be tried by the magistrates themselves (on a later date) then the defendant will be given the option to ask for an indication of sentence if they were to plead guilty instead. The court has the discretion as to whether or not to give such an indication and if they do, it must be confined to telling the defendant whether or not the sentence would be custodial or non-custodial. The process is to try and encourage guilty pleas where perhaps the only reason for going not guilty is concern by a defendant of the sentence that they might receive.

Answer 306

The other option available to the defendants at this stage would be to elect trial by jury. The decision to elect is one taken by the defendant with advice from the solicitor, if necessary. There are a number of advantages and disadvantages of a trial by jury, for example, time cost as well as sentencing powers. But the separation of the role of the judge and jury can, in some cases be very advantageous.

Answer 307

then the magistrates at this first hearing will undertake case management setting out directions for trial and setting down a date wherever possible.

Answer 308

then the next hearing will be in the Crown Court at a Plea and Trial Preparation Hearing. Therefore, at this stage, the magistrate, along with the clerks, will fill out documentation which will then effectively transfer the case to the Crown Court and their involvement in it will cease.

Answer 309

If the matter is indictable only then the magistrates have no jurisdiction other than dealing with administrative matters such as legal aid and making decisions regarding bail, if necessary, the matter will simply be sent to the Crown Court and they will have no further dealings.

Answer 310

· First hearings - All adult defendants have their first hearing before a magistrates' court irrespective of the offence that they are charged with. Exactly what happens at the first hearing depends on the classification of offence which the defendant is defendant. · Pleas- At a first hearing for a summary only or an either-way offence the defendant will be asked to enter their plea to a charge. · Plea before venue and allocation - will take place to determine the location of a trial for an either way offence. · Initial details- The prosecution is obliged to serve 'initial details' as set out in Criminal Procedure Rules, which include a summary of the circumstances of the offence and the defendant's criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view. · Indictable only offences- no plea will be taken.

Answer 311

Being released on bail to a later date should be on unconditional bail, as this is the default position for unconvicted defendants, except for those falling into special categories such as murder. In that situation, the defendant may not be granted bail unless there is no significant risk. This statutory right to unconditional bail is enshrined in Section 4 of the Bail Act. A criminal court can only interfere with somebody's right to bail if one or more of the statutory exceptions are met.

Answer 312

The three most commonly used exceptions are located in part one, schedule 1, paragraph 2 of the Bail Act. Here, the court must be satisfied that there are substantial grounds to believe that if released on bail, the defendant would 1) fail to surrender, 2) commit further offences or 3) interfere with witnesses or otherwise obstruct the course of justice. It is also worth noting paragraph 2A. Here, bail need not be granted if the defendant is appearing before the court charged with an indictable offence alleged to have been committed whilst already on bail. Remember that an indictable offence is indictable only and either way. There is, however, a stipulation that bail should not be removed under one of these grounds if the defendant is charged with an offence where there are no real prospects of the defendant receiving a custodial sentence. For example, theft is an indictable offence and is imprisonable and so, strictly speaking, even stealing a chocolate bar could lead to a prison sentence. However, if on the facts of the case, there is no real prospect of a custodial sentence being imposed, then the grounds for objection to bail under paragraph 2 or 2A cannot succeed.

Answer 313

The factors are not grounds themselves, but help the courts determine if the grounds are made out and for the evidence base. mandatory to consider: - ground failure to surrender: all nature/seriousness (likely disposal): all grounds character of D + antecedents, associations/communitiy ties: + commit further offence D's past bail record: strength of evidence: witness interference + commit further offences

Answer 314

relevant, proportionate and enforceable. For example, thinking about our failing to surrender, this could include a condition of residence or condition of reporting to a police station, a surety, a security or maybe surrendering their passport if there are friends or family abroad. Other conditions might relate to the commission of further offences, such as having a curfew, staying away from certain areas or certain people, or staying out of certain premises which might sell alcohol, for example.

Answer 315

Apart from murder, magistrates have the jurisdiction to make decisions about bail at the first hearing of all offences. An argument will be put before the court by the prosecution if they are seeking a remand in custody and then the defence will set out the points they wish to raise to counter argue the prosecution's case. This is known as a full argument, and on reaching their decision, the magistrates will complete a relevant document setting out why bail has been granted, what conditions have been imposed, if so, or why they have remanded somebody into custody. It will also set out clearly the exceptions, grounds and factors upon which the magistrates have based their decision. If the decision is taken to refuse bail and remand the defendant in custody, then they must be brought back before the court no later than eight days subsequent, where they will be allowed to make another application. This might be towards a different bench or district judge and more information might now be available, which would allow for different decision to be reached. If a further remand into custody is made, then following a full argument and a certification of said fool argument, a judge in chambers bail application can be issued. And this is heard by a judge sitting in his chambers in the Crown Court. This can be done after either the first or the second hearing provided, a full argument was made.

Answer 316

The offence of failing to surrender does carry a prison sentence along with a power of arrest, the offence of failing to surrender does have a caveat in so far as it is without reasonable cause. And it is therefore a matter for the defence to establish reasonable cause on the balance of probabilities. Breaching a bail condition whilst having a power of arrest does not create an offence. For a defendant arrested and brought back before the court for breach of bail, the magistrates will probably have to be persuaded that it is appropriate to extend the bail, notwithstanding that the condition has now been breached. They will, of course, listen to arguments as to the extent of the breach and the reasons for it.

Answer 317

A lot of the case management and directions which are needed can be given by the magistrates during the first hearing if the trial is going to take place in that jurisdiction, because it is either a summary only or an either way matter where summary trial has been deemed appropriate. In the Crown Court much of the case management will take place at the Plea and Trial Preparation Hearing. This is for all indictable only matters and those either way cases which have been sent from the lower court. Part of the case management will involve the parties having to complete the appropriate forms. In the Crown Court this will be the Plea and Trial Preparation Form and in the magistrates’, it is called the Preparation for Effective Trial (PET) form.

Answer 318

The duty to disclose this material falls on the prosecution and they should do so once the duty has been triggered. This happens when a not guilty plea has been entered in the magistrates’ or the matter is sent for trial to the Crown Court. The test is that any material which undermines the prosecution case or could reasonably assist the defence case should be disclosed to the defence. It is an ongoing duty, and therefore, if material comes into the possession of the prosecution after the initial disclosure has occurred or following the service of the defence statement, then the material should be reviewed and disclosed if appropriate. Material can be distinguished between that which is sensitive and non-sensitive, and there is usually not an issue in disclosing the non-sensitive material to the defence. Sensitive material, however, might involve information relating to intelligence or undercover officers. In some circumstances, the prosecution will make an application if it does not wish to disclose this material, believing that to do so would give rise to a real risk or serious prejudice to an important public interest. This is why it is known as an application for public interest immunity.

Answer 319

There are time limits which need to be complied with by the defence in relation to the service of the defence statement. Because the defence statement is a mandatory requirement in the Crown Court, it must be served within 28 days of the prosecution complying with their duty of disclosure; a failure to do this within the requisite time period can lead to adverse inferences being drawn. A defence statement is not obligatory in the magistrates’ court, although for reasons such as seeking specific disclosure, it might be appropriate for one to be prepared. If one is served in the magistrates’ court, then the time limit is shorter and it must be done within 14 days, or, as the magistrates’ court standard directions state, within 10 business days of the prosecution disclosure.

Answer 320

Whenever a defence statement is served it must be in writing and signed by the defendant or their solicitor. It must set out: · the nature of the defence of the accused; · the matters upon which the accused takes issue with the prosecution; · why the accused takes issue with the prosecution; and · any particulars of the matters upon which they intend to rely in their defence. They should also set out any points of law, including those as to admissibility or abuse of process, and also set out an alibi or any alibi witnesses. Bare denials are not sufficient to comply with these obligations. In addition, in both the Crown Court and the magistrates’ court the defendant must set out to the court and the prosecutor a notice indicating whether or not the defendant intends to call any witnesses at trial above and beyond the defendant and identifying who those witnesses are. Alibi witnesses, of course, having already been included in the defence statement do not need to be repeated in this Notice of Intention to Call Defence Witnesses.

Answer 321

As well as the prosecution being able to apply under public interest immunity, under Section 8 of the CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under the prosecution's duty, but which has not been disclosed. This is commonly known as a Section 8 application or an application for specific disclosure. As the title suggests, the application must be for a specific item and not a ‘fishing expedition.’ Sometimes it may become apparent during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities or even financial institutions. No duty of disclosure under the CPIA rests with such third parties but if the material might be considered capable of undermining the prosecution case or assisting the case for the accused, then the prosecution should take appropriate steps to obtain it.

Answer 322

Given the importance of disclosure in criminal cases, where it becomes apparent that the prosecution has failed in its duty to disclose relevant material, the consequences can be quite serious. For example, it might be that the defence can issue an application to stay the indictment on the grounds of abuse of process or evidence might be excluded under the court's discretionary powers under Section 78 PACE or ultimately, it could result in a conviction being quashed on appeal due to the conviction being deemed unsafe.

Answer 323

A trial is the hearing at which a court determines somebody's guilt. In the magistrates’ court, this might be done by bench magistrates or by a single district judge. In the Crown Court a judge will preside over the trial, but the decision as to guilt will be taken by a jury of 12 people. A jury verdict should be unanimous, although there are situations in which a majority verdict can be returned. Generally, however, trials follow the same basic process wherever they are held, because the burden of proof rests with the prosecution.

Answer 324

It is always the prosecution that will start the trial process. After the jury has been sworn in the Crown Court, the prosecutor will open the case. In doing so, they will set out the context and explain what it is that the prosecution must prove. They might highlight the evidence upon which they intend to do this and which witnesses they will be calling. The prosecution case will involve the calling of those witnesses who were identified during the case management pre-trial process. The witness enters the courtroom and goes into the witness box where they are sworn. The prosecutor will then take the witness through their evidence called evidence in chief. Using their witness statement, the advocate will guide the witness through the key testimony in the hope that they will establish the relevant facts in issue. Other parties, namely the defence, will have the opportunity to cross-examine. The defence will have seen the written witness statement and any major inconsistencies can be drawn to the witnesses attention by the defence during the cross-examination.

Answer 325

There are some rules about who can give evidence at a trial and the type of evidence that they are allowed to give. A witness cannot normally give opinion evidence unless they are an expert. So, an ordinary witness may not, for example, be able to say that the car was being driven dangerously. Whether or not the manner of driving was dangerous is a matter of opinion and may well be the issue that the jury themselves have to determine. Instead, the witness will be invited to describe to the court the manner of driving which they observed, such as the speed or any erratic manoeuvres.

Answer 326

There are also rules about who can give evidence, the general rule is that any person, irrespective of their age, is able and competent to give evidence provided they can understand the questions put to them and give understandable answers. Obviously, when dealing with particularly young witnesses. The method in which they give evidence might be different; this is what we know as special measures. It might be that they do a pre-recorded testimony outside of the courtroom and they might also be cross-examined in a similar fashion. The surroundings might be less formal and they might have somebody there to support them. This is not the same thing as not being a competent witness. The only exception to competency is that of a defendant, who can never make a competent witness for the prosecution. If you stop and think about this for a moment, it makes sense. How can a defendant be a witness against themselves?

Answer 327

The main rules that cause difficulty are to do with the compellability of a witness. Compellability refers to being able to make a witness attend court by allowing a summons to be issued to secure their attendance. Again, the general rule is that if a witness is competent, then they are also comparable for that party that seeks to call them. There are, of course, a number of exceptions. The defendant is one of these exceptions, they cannot be compelled to give evidence at their own trial; only a defendant can choose whether or not to give evidence. However, if they choose not to, they must be aware that a court is entitled to draw an inference, if it so chooses, from their failure to testify. The other difficult group of witnesses are those of the spouses of the defendant. There are, however, some exceptions to this rule. First and foremost, a spouse can be compelled to give evidence against their wife or husband or civil partner on behalf of the prosecution if the alleged offence is against themselves. Likewise, they can be compelled for the prosecution if the offence is a sexual allegation or it is an offence committed on a child under the age of 16. These are known as specified offences. -- So, if you are dealing with a specified offence, then the spouse of the defendant can be compelled to come to court. It's the same rules, for example, if a co-accused would like the spouse of their co-accused to give evidence. Let us imagine that we have two defendants, Alan and Bruce. Bruce is married to Caroline. Unless the offence is specified, Caroline could not be called by the prosecution to give evidence. Maybe Alan wants to call Caroline because he believes that she would be able to exonerate him? Alan could not compel Caroline to give evidence unless the offence is specified. Bruce, however, could compel Caroline to give evidence on his behalf whatever type of offence is alleged against him. This is because the spouse of the defendant is not only competent, but compellable on their behalf.

Answer 328

At the end of the prosecution case, the defence will be able, if they so choose, to make an application of a no case to answer. This is when the defence are of the opinion that the witnesses evidence has not been good enough to establish a case to answer. In the Crown Court an application will be made in the absence of the jury. This is sometimes known as Galbraith's submission, because the test that needs to be met originally came from the case of Galbraith. The test in the criminal procedure rules is ‘that the prosecution evidence is insufficient for any reasonable court properly to convict’. If the application is successful, then that will be the end of the case and if in the current court the jury will be directed to acquit. If an application of no case to answer fails or is not made, then the trial will move to the defence case.

Answer 329

Usually, the first witness called will be the defendant themselves, although, as we've just heard, the defendant does not have to give evidence. The second half of the trial will take place in the same way insofar as witnesses will be called by the defence, they will give their evidence in chief and they can be cross-examined. It is unusual for defence witness statements to be served upon the prosecution in advance. The prosecution will, however, of course, up the defence statement in the Crown Court and possibly have it in the magistrates’ court. If there are any inconsistencies between this document and the defendant's evidence or case, then they can be cross-examined about it. At the conclusion of the defendant’s case, then both the prosecution and the defence will make closing speeches outlining the strengths of their case and the weaknesses of their opponents based upon the evidence that has been heard before the court. This might, of course, include highlighting any inconsistencies between the witnesses or where the witnesses have been particularly sure or unsure of a particular issue. In the magistrates’ court, the magistrates or district judge will retire. Whereas in the Crown Court, the judge at this stage will have to sum up the case of the jury and give any directions that are needed. Obviously, these directions will depend upon the nature of the case, but might include directions by inferences about particular types of evidence and, of course, about the burdens of proof.

Answer 330

Sometimes it's possible to find the defendant not guilty of the offence charged but of an alternative offence. In the Crown Court this might even be an alternative count on the indictment. So it might be that they are found not guilty of one count, but guilty of the other. Once the guilty verdict has been returned, then the defendant will have to be sentenced and it may be that the matter is adjourned to allow for sentence; although in the magistrates, it might be possible for them to sentence on the same day. In the Crown Court, the jury has no further role to play. Sentence is entirely a matter for the judge.

Answer 331

admissible + complies with rules of admissibility First, evidence needs to be admissible. If the evidence is not before the court, then the court will not be able to consider it. The general rule is that evidence which is relevant and probative to a fact, an issue should be admissible. If the piece of purported evidence is not relevant to a fact at issue, then it will not be admissible. Assuming that the evidence is relevant to a fact issue, the next stage is to ensure that it complies with the rule of admissibility. Most pieces of evidence will be admissible, however, there are types of evidence which can be complicated. Evidence of a person's character, expert's evidence, confession evidence and hearsay evidence are just some of the examples.

Answer 332

hearsay bad character

Answer 333

Does the evidence fall within the definition of hearsay evidence? If the answer to this question is 'yes', then it is prima facie inadmissible. Does it fall within one of the exceptions to the general exclusionary rule? A statement is hearsay if: it is made out of court; and the person that made it intended another person to believe it; and it is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003).

Answer 334

Hearsay is admissible if all the parties agree or one of the exceptions apply: the witness is unavailable (s.116); it is a business document (s.117) it falls under a common law exception (s.118); it is a previous inconsistent or consistent statement of a witness (ss.119 and s.120). If any of the exceptions apply, the court has discretion to exclude otherwise admissible hearsay if: a business document etc and the court is satisfied that the statement’s reliability is doubtful (s.117(6) and(7)); by stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence (s.125); it is superfluous (s.126); it is unfair prosecution evidence (s.78 PACE). If the parties don’t agree and the exceptions do not apply, the court has discretion to admit hearsay if it is in the interests of justice to admit it under: s.114(1)(d) in respect of hearsay or s.121(1)(c) in respect of multiple hearsay.

Answer 335

The effect of s.114(1) & s.115 taken together was considered in R v Twist [2011] EWCA Crim 1143. The Court of Appeal reformulated the sections as a test that determines whether or not a communication is hearsay. It is in three parts: 1) Identify what relevant fact (matter) it is sought to prove. 2) Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication). 3) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true. -- If yes, it is hearsay. -- If no, it is not.

Answer 336

Private diary — It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything. CCTV — section 115(2) contains the words '... made by a person ...’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input. Questions — Where there is no statement of a matter, eg where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise. In Twist the communications in question were text messages received by the defendant asking for drugs. There was no statement that he was a drug dealer (which was the matter that the prosecution sought to prove), so the messages were not hearsay and were admissible. The court went on to say that even if on these facts there was an implied statement that the recipient of the messages was a drug dealer, it was certainly not the intention of the sender of the message to make the recipient believe that fact. Applying s.115(3) means that on that interpretation the messages are still not hearsay. To show the effect of words — In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore where a defendant wants to reveal solicitor’s advice to show why a "no comment" interview was given, that evidence is not hearsay. Legally significant words — Where the words spoken have significance as a matter of law, they are not hearsay. Therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of "brothel". Falsehoods — It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true. Therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Answer 337

In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – 1. all parties to the proceedings agree to the evidence being admissible; 2. the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it; 3. it is important explanatory evidence; 4. it is relevant to an important matter in issue between the defendant and the prosecution; 5. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; 6. it is evidence to correct a false impression given by the defendant; or 7. the defendant has made an attack on another person’s character.

Answer 338

First, the court must be satisfied, however, that it is dealing with evidence of bad character. So, the first step is to ensure that the evidence meets the definition. Bad character can cover misconduct or other reprehensible conduct that is not pertaining to the offence itself. Membership of a gang might be deemed to be misconduct or reprehensible behaviour and might thus fall under the definition of bad character. But whether that information is put before the court will depend on whether or not it is admissible under one of the seven gateways in the statute.

Answer 339

It is not simply the case that it completes the picture; it must be the situation that without it, it would be impossible or difficult to understand the context of the rest of the evidence.

Answer 340

propensity (+ untruthfulness) First, it will, of course, be necessary to identify the relevant issues, i.e., a matter of substantial importance within the context of the case. Evidence of propensity to commit offences of the type charged can be established by showing previous convictions that are of the same description or of the same category. According to the statute, two offences are of the same description if they are written in the same terms such as theft and theft or ABH and ABH. Offences of the same category are those that belong to the same category prescribed by the Secretary of State. At the moment, these are limited to theft offences and offences under the Sexual Offences Act. Importantly, Hanson stated that there is no minimum number of convictions necessary to demonstrate propensity, although the fewer the number of convictions, the harder it will be to establish propensity. A single previous conviction for an offence even of the same description or category is unlikely to show propensity unless it demonstrates a particular or unusual type of behaviour. This is similar to the old law of striking similarity. Meanwhile, propensity towards untruthfulness is usually used in cases where perhaps the defendant is relying on an explanation in their defence that they have used previously. Be careful and truthfulness is not necessarily the same as dishonesty. So, having a previous conviction for dishonesty offences such as theft or burglary does not necessarily mean that the defendant is untruthful. They might perhaps have always admitted that guilt in respect of their previous offending

Answer 341

usually used when dealing with cut-throat defences. A cut-throat defence is where two or more defendants are all blaming each other. In that situation, it might be that if the defendant A is blaming defendant B, defendant B would like to tell the jury about the previous convictions of defendant A to try and demonstrate that, in fact, it's far more likely that A committed the offence than B.

Answer 342

Another gateway is for bad character evidence to be admitted to correct a false impression. This is only available to the prosecution where a defendant has perhaps made an assertion during their evidence that they are perhaps somebody of previous good character.

Answer 343

Previous convictions or other bad character could be admitted under the final gateway whereby the defendant has attacked another person's character. For example, they might have accused the prosecution witness of lying or behaving in a manner that is reprehensible. This must be beyond the mere denial of the prosecution case, but it is effectively ensuring that the jury is made aware of the character of the person who made such accusations.

Answer 344

However, there are a number of safeguards. For example, the court must not admit evidence under gateways d or g (4-7) if it appears to the court that the admission of such evidence would have an adverse effect on the fairness of the proceedings. 4. it is relevant to an important matter in issue between the defendant and the prosecution; 5. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; 6. it is evidence to correct a false impression given by the defendant; or 7. the defendant has made an attack on another person’s character. Once bad character has been admitted through one of the gateways, the weight to be attached to it is a matter for the jury subject to directions given to them by the judge.

Answer 345

A confession is defined in statute as a statement wholly or partly adverse to the person who made it and can be made orally or in writing; it can also be made to anybody. Often an admission will be made to the police during the interview conducted under caution and in those situations, one would normally anticipate that a guilty plea would follow. There are, however, situations when a confession is subsequently disputed by the defendant and there have been miscarriages of justice which were not subsequently shown to be true. Confessions are an exception to the rule against hearsay: They are of court statement which is being repeated to prove the truth of the statement, i.e., the admission of the defendant. Confessions therefore are admissible.

Answer 346

s76: once defence raises, prosecution to prove not obtained by oppression or in consequence of things/said done s78: defence to adverse effect on fairness of proceedings (not just limited to confessions) Section 76 operates as a matter of law. A confession must not be put before the court if it was obtained through oppression or in consequence of something said or done. Once raised by the defence, unless the prosecution is able to prove beyond reasonable doubt that the confession was not obtained by oppression, it must be excluded. Another way of having a confession excluded is through the discretionary power under section 78. Here, the defence could argue that to allow the confession into evidence would have an adverse effect on the fairness of the proceedings. It is important for the defence to be able to demonstrate that the unfairness arises from the circumstances in which the evidence was obtained. The circumstances in which the evidence was obtained may include breaches of PACE or the COP. Breaches of PACE can also be used to demonstrate the things said or done under Section 76.

Answer 347

A voir dire is a trial within a trial and will only be required if a factual matter relating to the substance of the legal argument requires resolution. If the facts are in dispute, perhaps a dispute as to whether or not things were said or about whether a conversation took place, then it is likely the evidence will need to be called from the police and the defendant themselves. And in that situation, a voir dire will be necessary.

Answer 348

Whenever a case rests wholly or substantially on the identification of the defendant, then the court must be mindful of the identification evidence. The case which provides guidelines is that of the case of R v Turnbull and many of the key elements are often remembered by using ADVOKATE. If the judge is of the view that the evidence is not reliable, for example, the length of time under observation or the visibility or any doubt displayed by the witness in their evidence, then the judge is entitled to consider whether that evidence should remain admissible. If there is other evidence that does suggest that the defendant could be the person responsible, (maybe there are fingerprints or other witnesses who have identified the defendant in the VIPER) then the judge is more likely to allow the case to proceed. If, however, at this stage, there is no other evidence, the judge will undoubtedly accede to an application by the defence and will have no option but to withdraw the case from the jury at that point. If the case does proceed, then the jury will be allowed to consider the strength of the ID evidence made by the witness in the usual manner. As part of the summing up to the jury, the judge will provide a Turnbull direction setting out the manner in which the identification was made by each and every identification witness where necessary and remind the jury that even an honest and convincing witness can still make a mistake.

Answer 349

Once evidence has been admitted and put before the court, it is a matter for the magistrate's district judge or jury to decide the weight which they think should be given to a particular piece of evidence.

Answer 350

Unless the court is satisfied beyond reasonable doubt of someone’s guilt the benefit must be given to the defendant. This is known as the legal burden. The legal burden the burden on the prosecution to prove the case beyond reasonable doubt. Whenever a party has to prove something, they have the legal burden. It is rare for the defence to have a legal burden, but when they do so, it is only on the balance of probabilities. Every now and then, the prosecution has the burden to disprove something, but this is still a legal burden. For example, where the prosecution must prove beyond reasonable doubt that the defendant was not acting in self defence.

Answer 351

This situation only arises however once the issue has been raised by the defence and this is known as the defence having the evidential burden. The reason that the defence has an evidential burden in some situations like self defence is so that the issues remain focused and it only becomes a matter for the prosecution to disprove it if it is actively raised by the defence. Evidential burdens are not the same as legal burdens Another example of an evidential burden is that the burden falls upon the prosecution to establish a case to answer. If at the end of the prosecution case, the evidence presented does not suggest a case to answer, then the case should be stopped at that point, usually in response to an application by the defence. Sometimes this can depend on how the witnesses have performed in the witness box, or sometimes it's due to a procedural error becoming apparent, such as a particular statement not having been obtained. Different types of evidence have some specific rules pertaining to them. For this reason, it is important to make sure that you understand the different types of procedures.

Answer 352

There are two key thresholds, namely the custodial threshold, which must be passed before a discretionary custodial sentence can be imposed and also the community threshold.

Answer 353

the sentence itself and then the operational period. So, for example, a custodial sentence of one year could be suspended for two years - The operational period is two years. When the court suspends the sentence, it may impose one or more requirements for the offender to undertake in the community. These requirements are identical to those available for community orders. So, for example, they could order that the defendant complete 200 hours of unpaid work. If during the period of the suspension, in our case two years, the defendant reoffends, then the court can activate the sentence of imprisonment in whole or in part. The court must activate the custodial sentence unless it would be unjust in all the circumstances to do so. If an offender fails without reasonable excuse to comply with the requirements of their order, they must first be warned that their failure is unacceptable. If they continue without reasonable excuse to comply, then breach proceedings must be instituted against the offender.

Answer 354

Courts are limited by maximum sentences that can be imposed. There are certain custodial sentences which can only be imposed by the Crown Court, such as life sentences or sentences for dangerous offenders. When we turn to discretionary sentences in the magistrates’ court, these are limited, irrespective of the offence, to six months imprisonment unless it is two or more either way offences. In the Crown Court, the maximum penalties are set by the specific offence’s statute. So, for example, theft carries seven years on indictment, but six months in the magistrates, whereas ABH would carry five years on indictment, but still six months in the Magistrates’ Court. It is also an option in some circumstances for the court to suspend a custodial sentence. There are two parts to a suspended sentence, the sentence itself and then the operational period.

Answer 355

At a sentencing hearing, both the prosecution and the defence will have an opportunity to address the court. The judge will then have to reach a decision about the appropriate sentence to pass and will provide full reasons to the court. The first thing that the judge will have to do is decide on the category of the offence. They will do this by considering the extent of the culpability of the offender and the harm caused by the offending. Having identified the category, this will provide the judge with a starting point and a range within which the sentence should fall. Aggravating factors will result in an uplift from the starting point, whereas mitigating factors will reduce it. Having considered both the aggravating and mitigating factors, this will allow the judge to reach a provisional decision as to the appropriate sentence, for example, the judge may consider that six months imprisonment would be appropriate. It is at this point that the judge will then consider whether or not any other reductions need to be made. Have they assisted the prosecution? Or do any reductions have to be applied for a guilty plea?

Answer 356

A guilty plea at the first stage of proceedings should result in a reduction of a third. The judge will then consider the totality of the sentence, as well as considering whether or not there should be any ancillary orders, such as compensation or any orders for costs.

Answer 357

On occasion, it may be necessary to have a Newton hearing. A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution, and the court has concluded that the factual differences would make a material difference to the sentence imposed. If the prosecution accepts and agrees with the defendant's account, this should be put in writing and given to the judge before the sentencing hearing. If the prosecution rejects the defence version of the areas of dispute, this should also be outlined in writing. The judge may approve the prosecution's acceptance of pleas, but they are not bound to. If a dispute continues to arise, then the judge may decide to hold a hearing without a jury present to resolve these issues. This is called a Newton hearing.

Answer 358

10 and 17 years of age.

Answer 359

need to have an appropriate adult if they are under 17.

Answer 360

The principal aim of the youth justice system is to prevent offending by children and young people. But the courts must also have regard to the welfare of the child or young person.

Answer 361

All cases concerning children and young people should be dealt with by the youth court. The youth court is a special court and is a court of summary jurisdiction, although it has different powers to that of the Magistrates’ Court. The Youth Court is not a public court and there are reporting restrictions on its cases. There are, however, some exceptions to this general rule. · If a child or young person is charged with homicide – murder or manslaughter -they must be dealt with by the Crown Court. · Likewise, if notice has been given in respect of a serious or complex fraud or in a child case, they must be dealt with by the Crown Court. · A child or young person who would fall under the dangerous offender provisions will be sent to the Crown Court. · Any young person over the age of 16 charged with a particular type of firearms offence will be sent to the Crown Court. There are two other important exceptions. Those are what we refer to as grave crimes and those situations where the child or young person is jointly charged with an adult.

Answer 362

Whenever a child or young person is charged with an offence that falls under the definition of a grave crime, then the court may send that person to the Crown Court either for trial or for sentence. There are two parts of the test. 1. The offence must fall within the definition of a grave crime. 2. The committing court must be of the view that a sentence of more than two years is going to be necessary to be imposed. A grave crime in relation to a child or young person is an offence which for an adult is punishable with 14 years imprisonment or more, or it's an offence of sexual assault or a child sex offence or a specified offence in relation to firearms. Whenever a child or young person appears before the youth court in respect of such an offence, the youth court will have to make a decision. It will be assisted by submissions from both the prosecution and the defence as it has to decide whether or not that is a real prospect that a sentence in excess of two years detention would need to be imposed. Although it has certain similarities, this is not the same as the process that an adult court would go through when dealing with an either way offence under the allocation guideline. The reason that the test is set at two years or more is because the maximum sentence that a youth court can impose is a two year detention and training order. Therefore, if the sentence is going to be more than that, only the Crown Court has the jurisdiction to impose it. In its overarching guideline, the Sentencing Council notes that sending a case under the grave crime provisions to the Crown Court should only take place where the offence is really serious and where the offence is of such gravity that a custodial sentence substantially exceeding two years is a realistic possibility. This should therefore be treated as a rare occurrence. It also highlights that in many cases it might not be possible to decide at that juncture whether there is a real prospect of a sentence in excess of two years detention. In those situations, the youth court is advised to retain jurisdiction and, if necessary, send the matter for sentence to the Crown Court at a later stage.

Answer 363

When a child or young person is jointly charged with an adult offender, their first appearance will be in the magistrate's court. This final exception will only be triggered if there is going to be a joint trial. So, if either party is to plead guilty, the exception will not be relevant. If however, the adult is to be sent to the Crown Court and the young person has also indicated a not guilty plea then the magistrates’ court is going to have to decide whether or not it would be in the interests of justice for them to be tried together. Some of the types of factors that the court will have to consider are set out. These include the age of the child or young person. Someone who is only 11 years old is going to have a very different experience of a Crown Court environment to somebody who is 17 or even nearing adulthood themselves. They will also think about the age gap. 17 and 18? or 17 and 48? and they think about the culpability of each of those involved; as well as the experience of the young person within the court system. But one of the key considerations is about the potential injustice that might be caused to witnesses or to the case as a whole in having to have separate trials. The emphasis at this point is always on the trial and how the trial will be conducted. If the magistrates reach the decision that it is not necessary to have a joint trial, then the child or young person will be remitted back to the youth court. Likewise, even if there is a joint trial in the Crown Court, it is always open to the Crown Court on conviction to remit the child or young person to the youth court for the sentencing process.

Answer 364

This might be relevant where, for example, on conviction, it becomes apparent that the child or young person should be given a referral order; the Crown Court does not have the power to impose such a sentence and therefore the individual would have to be sent back to the youth court. Many of the considerations in relation to sentencing that are relevant for adults apply equally to children and young people. The thresholds within the Sentencing Act apply. A detention and training order, which is a custodial sentence, can only be imposed when the relevant threshold has been passed. Likewise, a youth rehabilitation order should only be imposed when that threshold has also been passed. A referral order is a special type of sentence that can only be imposed on children and young people and in certain circumstances it is a mandatory sentence to impose. There are also additional penalties that can be imposed on parents such as parenting orders or parental bind overs. But, just as with adults, aggravating and mitigating factors are crucial and credit will be given wherever the child or young person has pleaded guilty. Some sentences are restricted by the age of the offender and others can only be imposed on children and young people of certain ages if they are deemed to be a persistent offender. It is recommended that you consider the Overarching Guideline Sentencing Children and Young People available on the Sentencing Council website.

Answer 365

It is possible to appeal a conviction and or sentence. It is not necessary for there to be grounds in the same way that there are in other appeal processes but it is necessary to set out the reason for the appeal in the documents served. It may be that it is argued that the sentence imposed is excessive given the circumstances of the case. The time limit in which to lodge an appeal from the magistrates’ court is 15 business days from sentence. An Appeal hearing in the Crown Court is called a hearing de novo, which means that everything is heard again. If it is an appeal against conviction, then the witnesses will be called and the trial will take place afresh. A Crown Court judge sits alongside two lay magistrates. Likewise, for a sentencing hearing, fresh submissions will be made. When sitting as an appeal court the Crown Court sentencing powers are restricted to those of the magistrates.

Answer 366

to the Court of Appeal. The usual procedure is to apply to the Court of Appeal for leave to appeal. A defendant has 28 days from conviction (in conviction appeals) and 28 days from sentence (in sentence appeals) in which to lodge an appeal. The advocate who represented the defendant will usually draft the grounds of appeal. Usually, it will be for the Single Judge to decide whether to grant leave to appeal. An application for leave to appeal can be renewed before the full Court of Appeal if the Single Judge refuses leave to appeal. It is necessary in this case to have grounds. These may take different forms. However, the overall test for the Court of Appeal is: · In relation to conviction, whether the conviction was unsafe · In relation to sentence, whether the defendant should have been sentenced differently.

Answer 367

There are a number of different schemes available through the legal aid agency criminal defence service which will allow for advice and assistance to be given but to be represented before the magistrates or the Crown Court it is necessary to be given a representation order. These are usually applied for at the first hearing where appropriate. In order to get a representation order there are two tests that must be satisfied that is the means and the merits test. The means test will always be satisfied if the defendant is on certain passport benefits otherwise it will be necessary to calculate their disposable income. In the magistrates’ court one is either eligible for legal aid under the means test or not where is in the Crown Court there is an option for a contribution order to be made towards defence costs. The merits test also known as the interests of justice or the Widgery criteria sets out a number of different factors that will be considered in deciding whether or not it is appropriate for the defendant's case to be funded from the public purse. This includes for example how likely it is that the defendant will receive a prison sentence as well as other factors impacting their life such as that reputation or livelihood. Cases which are more legally complex are also more likely to attract legal representation. The old duty solicitor schemes available in the magistrates’ court although these are limited to one appearance only and to imprisonable offences only unless the defendant is appearing in custody before the court. . Of course, everybody is entitled to free legal advice whilst in police detention although the legal aid scheme in some situations will limit this to telephone advice only.

Answer 368

First it may be that you are notified of your client's arrest by a third party. It may be for example that a family member contacts you to advise you that somebody has been arrested and asks that you go to the police station in order to represent them. This would be deemed third party instructions and it would be necessary to confirm the instructions directly from the suspect. They will need to have spoken with the custody sergeant on their arrival who would have had to contact the DSCC. It might be as another solicitor has already been instructed by the suspect. It is worth noting that the police cannot use you being asked to attend by somebody else as a reason to withhold legal advice from somebody in detention. In those situations the suspect should be notified that a solicitor is present and they should be asked whether or not they wish to speak to the solicitor in accordance with their rights. Of course criminal proceedings can be quite emotive and family members might be worried about somebody and their welfare while in custody. We owe our clients a duty of confidentiality and therefore should not discuss their case with any other person without the client's consent.

Answer 369

It is not unusual for there to be more than one person arrested or charged in relation to a particular crime. The starting presumption is that one solicitor is expected to act for all defendants and thus save public money close brackets unless there is a conflict of interest between those individuals. Principle 7 of the solicitor's Code of Conduct makes it clear that we are under a duty to act in the best interests of each client. Whenever we are put in a position where we are unable to do that we are in a conflict position. This might be for example where one suspect seeks to blame the other or where their stories are so different that it would adversely affect one client for that version to be explained to the police. It might also be that one client is clearly under the influence of another and that this would provide good mitigation come the sentencing hearing. All of these are examples of how there is an actual conflict of interest or a potential conflict of interest. Our Code of Conduct makes it quite clear that we cannot act for clients where there is or a risk of a conflict of interest. None of the exceptions that can apply in other areas of practice apply here. Conflicts of interest exist across the firm and cannot for example be dealt with by instructing different solicitors or different advocates to deal with the matter. Additionally, there may be an issue whereby we come into information from one client which is material to the other client. Again, we are under a duty to disclose to a client any information that is material to their case that we are personally aware of however if revealing this information would be contrary to the interests of the other client or that client does not consent to are revealing that information then we will not be able to meet this duty. In those circumstances we would have to stop acting for the clients. This is because we owe duties of confidentiality as well as duties of disclosure. We must be careful not to inadvertently breach our duty of confidentiality when, for example, telling a custody sergeant that it's necessary to contact another solicitor or telling the court that we are professionally embarrassed and will have to withdraw from acting.

Answer 370

We also owe a duty to the court. We must not knowingly or recklessly mislead the court including by omission. This could happen by telling the court something in a submission which we know to be untrue or we suspect to be untrue as well as calling a witness whose evidence we know or suspect to be untrue. Again, we can sometimes be put in a difficult position where we owe a duty to the court under duty of confidentiality to the client. In those situations where we are unable to tell the court something because our client will not allow it, but this will compromise our duty to the court then we would have to withdraw from acting. Our duty of confidentiality is paramount so we cannot explain to the court the reasons for withdrawing from the case. Courts do not like it when solicitors withdraw especially when clients are legally aided as it means another solicitor has to take over the case. However, it is important to uphold our principles and act with integrity and uphold the administration of justice. The decision whether or not to act is therefore always the decision of the solicitor. One issue that often arises is whether or not it is possible to continue to act for somebody when they have made admissions to you. You must not confuse pleading not guilty with misleading the court. Because the legal burden rests with the prosecution, it is for the prosecution to prove the case and any defendant is innocent until proven guilty. They are therefore perfectly within their rights to sit back and ask the crown to prove the case against them. It is for this reason the defendants will often not give evidence or will have remained silent during their police interview. However, it would be misleading the court to suggest in any way that your client is innocent of the crime alleged. In practice, this can be quite difficult and often what would really happen is that an application of no case to answer would be made and is successful, obviously, because the evidence has simply not come up to proof, then the defendant would be acquitted. If, however, the application of no case to answer is not successful, then some serious discussions would have to take place as to whether or not the defence would be able to present any case. It is important that we do not breach our duty to the court in any way during the presentation of our client's case.

Answer 371

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.

Answer 372

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.