Criminal Flashcards
You are prosecuting Emma, a police officer, for manslaughter after a suspect, Nicholas, died in custody while Emma was restraining him. Emma pleads not guilty. Her defence is that her use of force was reasonable in the circumstances because Nicholas was violent. Five years ago, Emma was investigated for police misconduct after another suspect, Graham, made an accusation that she used excessive force when arresting him.
You apply to admit this previous misconduct, but the judge rules that as it was a single incident from five years ago, it is not relevant to an important matter in issue between the prosecution and defence.
During the trial, while she is being cross-examined, Emma says, “I’ve never been accused of anything like this before. I have an exemplary service record.”
What would be the most appropriate next step to take?
[A] Cross-examine Emma about the previous allegation of police misconduct made by Graham to correct the false impression she has given.
[B] Apply to cross-examine Emma about the previous allegation of police misconduct made by Graham to correct the false impression she has given.
[C] Apply to cross-examine Emma about the previous allegation of police misconduct made by Graham, to show that Emma has a propensity to use excessive force.
[D] Cross-examine Emma about the previous allegation of police misconduct made by Graham, to show that Emma has a propensity to use excessive force
ANSWER
[B] Apply to cross-examine Emma about the previous allegation of police misconduct made by Graham to correct the false impression she has given.
[A] This is not the best answer as although Emma has denied being accused of anything like this before, the prosecution would need to apply to the Judge under s101(1)(f) before cross-examination, as the Judge must rule on whether Emma has made a false impression under gateway (f) and what evidence may be admitted to correct that false impression. Evidence admitted under gateway (f) is limited to evidence correcting a false impression (s. 105(6)) and the judge would have to rule on what could and could not be referred to here. You would not be able to simply cross-examine her without making an application first.
[B] This is the best answer because it would be the judge who rules on this issue (see the answer to [A] above. Though the judge previously ruled this evidence was excluded under s101(1)(d), it may now be potentially admissible under gateway (f) because Emma is suggesting there have been no allegations of excessive force against her in the past where there has been. However, it is a matter for the Judge whether she has made a false impression.
[C] This is not the best answer as although there is a potential argument that this showed a propensity to use excessive force, the Judge has already ruled that as it was a single matter and five years ago, it was not admissible. The comments of the defendant have not changed this position, so there are no new grounds to make the application again. Therefore, this is not the best ground to apply under.
[D] This is not the best answer for the reasons set out in [C] above. Also, you would need to apply to cross-examine, rather than simply cross-examine without an application.
You are prosecuting Salvatore, who is on trial for s.20 GBH against a former girlfriend who suffered two lost teeth during the attack. Towards the end of the trial the complainant asks you, in the event that Salvatore is convicted, what factors the court will take into account when passing sentence in the context of the impact of the incident on her.
What is the correct advice to give her?
[A] The complainant can provide the court with a victim personal statement, which can make suggestions about the appropriate type or length of sentence Salvatore should receive because of the impact of the offence.
[B] The complainant can provide the court with a victim personal statement, which will ensure that the court will consider the complainant’s evidence about the personal impact of the offence.
[C] The complainant is obliged to assist the court by providing a victim personal statement, which is necessary for the court to consider aggravating and mitigating factors when passing sentence.
[D] The complainant is not obliged to provide a victim personal statement but if she does not, a judge may infer from the absence of a victim personal statement an absence of harm.
ANSWER
[B] The complainant can provide the court with a victim personal statement, which will ensure that the court will consider the complainant’s evidence about the personal impact of the offence.
[A] This is wrong and not what the VPS is for. According to Perkins [2013] EWCA Crim 323, [2013] 2 Cr App R (S) 72 (460) VPS’s “provide a practical way of ensuring that the Court will consider the evidence of the victim about the personal impact of the offence. The process is not an opportunity for the victim to suggest, or discuss, the type or level of sentence to be imposed. The distinction is important.”
[B] This is the correct answer - see [A].
[C] This is wrong. The complainant is not obliged to make a VPS: “Victims must be provided with information which makes it clear that they may make a statement but are under no obligation to do so.”
[D] This is wrong. The judge is not to assume that there has been no impact if no VPS is provided: “A judge must not assume that the absence of a victim personal statement indicates an absence of harm” (Chall [2019] EWCA Crim 865).
You represent Barbara, who is being tried summarily for an offence of criminal damage where the value is in excess of £5,000. The magistrates find Barbara guilty, impose a fine and order her to pay the prosecution costs. Following the hearing, Barbara tells you she wishes to appeal both her conviction and sentence to the Crown Court. She is concerned about any negative consequences of pursuing the appeal.
What is the correct advice to give Barbara in relation to the Crown Court’s powers if she is unsuccessful in her appeal?
[A] It can order Barbara to pay the prosecution costs of the appeal and can increase her sentence to the maximum that the magistrates’ court could have passed.
[B] It can order Barbara to pay the prosecution costs of the appeal but cannot increase the sentence passed by the magistrates at the conclusion of her trial.
[C] It can order Barbara to pay the prosecution costs of the appeal and can increase her sentence to the maximum that it could have passed if she had been tried on indictment.
[D] It cannot order Barbara to pay further prosecution costs but can increase her sentence to the maximum that the magistrates’ court could have passed.
ANSWER
[A] It can order Barbara to pay the prosecution costs of the appeal and can increase her sentence to the maximum that the magistrates’ court could have passed.
[A] is the right answer because it encapsulates s48(4) Senior Courts Act 1981 and the rules in relation to prosecution costs covered in CrimPR 45.
[B] is wrong because they can increase her sentence.
[C] is wrong because they can only increase her sentence to the maximum the magistrates’ court could have imposed.
[D] is wrong because they can order her to pay the prosecution’s costs on the appeal irrespective of whether they ordered costs at the original trial.
You are defending Gordon in the magistrates’ court. He has pleaded not guilty. At a pre-trial hearing, the prosecutor applies for the witness statement of Brandon, a key prosecution witness, to be admitted as hearsay evidence because Brandon cannot be located. The District Judge rules that the evidence can be admitted as hearsay at the trial. On the day of trial, you are informed by the prosecutor that Brandon has been located and is available to attend the hearing, but that she does not intend to call him as a live witness. You ask the prosecutor to call Brandon to give live evidence, but she refuses, insisting there is no obligation to do so because his witness statement has already been ruled as admissible hearsay.
What is the most appropriate action for you to take?
[A] Apply to the magistrates to discharge the pre-trial ruling allowing Brandon’s evidence to be admitted as hearsay.
[B] Inform the magistrates that Brandon is available so that they can consider whether to discharge the pre-trial ruling of their own motion.
[C] Seek the prosecutor’s agreement for Brandon to be called to give live evidence.
[D] Proceed to trial as planned, allowing Brandon’s evidence to be admitted as hearsay.
ANSWER
[A] Apply to the magistrates to discharge the pre-trial ruling allowing Brandon’s evidence to be admitted as hearsay.
[A] The best answer. There has been a material change of circumstances since the pre-trial ruling. Given the prosecutor’s refusal to voluntarily call Brandon the best approach is to apply for the magistrates to discharge the pre-trial ruling under s.8B(3) MCA 1980.
[B, C, D] These are not the best answers. Whilst all technically possible they do not best answer the question. There has been a material change of circumstances since the pre-trial ruling. Given the prosecutor’s refusal to voluntarily call Brandon the best approach is to apply to the magistrates to discharge the pre-trial ruling under s.8B(3) MCA 1980.
Danna is convicted in the magistrates’ court of causing £100 worth of criminal damage.
What is the maximum custodial sentence that the magistrates can impose?
[A] Three months
[B] Six months
[C] Nine months
[D] Twelve months
ANSWER
[A] Three months
[A] is correct – as the value of the damage is below £5,000, the maximum sentence that can be imposed is three months. Therefore [B], [C] and [D] are wrong.
You prosecute Harrison (aged 16) in the youth court. He has pleaded not guilty to charges of robbery and having a bladed article in a public place (an either-way offence).
On the night of the incident, the complainant, Joseph (aged 19), gave a witness statement to the police in which he alleged that Harrison threatened to stab him if he did not hand over his mobile phone.
Two weeks before the trial, Joseph provided a further statement to the police stating that everything in his first statement is true, but he is no longer prepared to attend court and give evidence at trial, as he is fearful of reprisals from Harrison and his friends, who live in the same area.
Joseph’s further statement is served on Harrison’s solicitors. At a pre-trial review hearing, Harrison’s solicitor applies for the matters against Harrison to be discontinued on the basis that the prosecution cannot secure Joseph’s attendance at trial.
How should you respond to the defence application?
[A] Offer no evidence, as it is not in the interests of justice to secure Joseph’s attendance at trial in light of his further witness statement.
[B] Offer no evidence, as Joseph is unlikely to be able to give material evidence at trial as there is now a question over his credibility as a reliable witness.
[C] Apply for a witness summons, as Joseph is likely to be able to give material evidence at trial and it is in the interests of justice to issue such a summons.
[D] Apply for a witness summons due to the seriousness of the allegation, and the court’s duty to protect the public from harm in cases involving vulnerable witnesses.
ANSWER
[C] Apply for a witness summons, as Joseph is likely to be able to give material evidence at trial and it is in the interests of justice to issue such a summons.
[A] Is wrong. Joseph is likely to be able to give material evidence and it is likely to be in the interests of justice for the court to issue a witness summons; Joseph’s further statement makes clear that the original allegation is true, and it is only the fear of reprisals which has led to Joseph withdrawing support for the prosecution as opposed to his original allegation being untrue. An answer which suggested that this is the correct approach would not be applying the test in MCA 1980 s.97 correctly.
[B] is wrong. Joseph is likely to be able to give material evidence for the purposes of a summary trial; Joseph’s statement makes clear that the original allegation was true. See explanation to [A] also.
[C] is correct. In light of the contents of both Joseph’s original statement and further statement, he is likely to be able to give material evidence for the purposes of a summary trial and given the serious nature of the allegation, the court is likely to conclude that it is in the interests of justice to issue a witness summons. This is the correct application of the test set out in s.97.
[D] is wrong as it is not the correct application of the test which the court must apply in order to determine whether to issue a witness summons.
You prosecute Gabriel, who is on trial in the Crown Court for theft. It is alleged that Gabriel was seen by his colleague, Marian, entering their boss’s empty office one lunchtime and taking a wallet which had been left on the desk. The wallet contained a quantity of bank notes.
The only other evidence is that 30 minutes after it was taken, the empty wallet was found in a bin close to Gabriel’s desk in his office, which is on a different floor of the building.
When giving evidence, Marian accepted that she had only started working in Gabriel’s office the week before the incident. She explained how she had been sitting at her own desk, a few metres away from her boss’s office, from where she witnessed the theft. In cross-examination she admitted that the offender had his back to her but she did catch a glimpse of his face as he left the office, at which point she saw him putting something into his inside jacket pocket. When asked how sure she was that the offender was Gabriel she replied, “It’s difficult, more than 90% certain.”
At the close of the prosecution case, defence counsel makes a submission of no case to answer.
What is your best response as to whether the case can safely be left to the jury?
[A] It can, provided that a full Turnbull direction is given in relation to the identification evidence during summing up.
[B] It can, because the identification evidence is supported by other reliable evidence.
[C] It can, provided that the jury are directed that they must not convict Gabriel based on the identification evidence alone.
[D] It can, because Marian’s identification is based on recognition, which is more reliable than identification evidence alone.
ANSWER
[B] It can, because the identification evidence is supported by other reliable evidence.
[A] is not the best submission. Although a Turnbull direction will undoubtedly have to be given in the summing up, it is not sufficient in this case. “A defendant cannot properly be convicted on qualified identification evidence alone”. Thus, to avoid a successful submission of no case to answer the prosecution must draw attention to the other reliable evidence in the case, namely the finding of the wallet.
[B] is the best submission. “…as with other kinds of weak identification evidence, a qualified identification may have a legitimate role to play alongside other, more reliable, evidence.” The best submission for the Crown to make in these circumstances is that a case based on qualified identification evidence can safely be left to the jury when it is supported by other reliable evidence, namely the finding of the wallet.
[C] is not the best submission. Again, this might be an attractive submission but there is no obligation on the judge to give this kind of warning. “Where a judge decides that the identification evidence in a given case is of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, there is no obligation on him to warn the jury that they should not convict on the basis of the evidence of identification alone, should they reject the supporting evidence.”
[D] is not the best submission. Whilst possible, the facts of this scenario do not go far enough to suggest clear recognition.
You are prosecuting Karl, who is charged with dangerous driving (an either-way offence). Susie saw Karl’s car being driven at speed and crashing into a parked car before driving off. Susie wrote the car’s registration number on a piece of paper and read it out to a police officer, who then recorded it on a police incident report. CCTV is available, which shows the car being driven dangerously, but does not show the registration plate. Karl disputes that his car was involved and asserts that Susie recorded the car’s registration number incorrectly.
When Susie gives a statement a few days later, she has lost the piece of paper with the registration number on it. In her statement, Susie describes the driving. She also states that she gave details of the car registration number to the police but can no longer recall what it was. At trial, you wish to adduce the police incident report with the car registration number on it.
What is your best course of action to ensure that the report is adduced?
[A] Argue that the police incident report is admissible. It is not hearsay as Susie did not intend to cause anyone to act on the information.
[B] Argue that it is admissible hearsay under CJA 2003 s.117.
[C] Argue that it is admissible hearsay under CJA 2003 s.114(1)(d).
[D] Seek agreement from the defence for the police incident report to be admitted in evidence.
ANSWER
[B] Argue that it is admissible hearsay under CJA 2003 s.117.
[A] is not the best answer as when Susie wrote it down and then gave the information to the police, it is clearly arguable that this was done in order for someone to act upon it.
[B] is the best answer as the prosecution can argue for it to be admitted under s.117 of the CJA 2003 on the basis that it is a document, created or received by a person in the course of a profession, and the person (Susie) had personal knowledge of the matters contained in it. As Susie read out the registration number and supplied the information to the police at the time of an offence, it is arguable that it was prepared in contemplation of criminal proceedings or investigation (s.117(4)). If so, s.117(5)(b) is satisfied if it can be shown that the relevant person (Susie) cannot reasonably be expected to have any recollection of the matters dealt with in the statement having regard to the length of time since she supplied it (and she has said she cannot).
[C] is not the best answer as whilst the prosecution could argue that it is admissible under s.114(1)(d), the primary application should be under s.117 as the police incident report falls under this heading as a business document. The authorities indicate that the CJA 2003, s.114(1)(d) is to be applied with caution - s.114 has been referred to in terms of a ‘hierarchy’ of exceptions; s.114(1)(d) should not be used to circumvent requirements of other gateways further up the hierarchy.
[D] is not the best answer as Karl does not accept this is right and therefore the defence are most unlikely to agree to this evidence being adduced under s.114(1)(c).
Two months ago, Errol was released from a 16-month prison sentence for an offence of burglary. Shortly after his release, he began a relationship with Sarah and is now living with her at her parents’ house in Birmingham. Last night, Errol was arrested at this address for a further offence of burglary. It is alleged that seven days ago, he broke into a house in Bristol. It was during the day and the tenant was not on the premises at the time.
Errol accepts that he was in Bristol on the day of the burglary as he had travelled from Birmingham with friends to attend a football match. However, he denies the current allegation. If convicted, he is likely to receive a sentence in excess of the 16 months received for his last offence. The Court is considering conditional bail.
Which of the following conditions is the court most likely to impose on Errol?
[A] To observe a daily curfew between 20:00 and 07:00.
[B] To report to his local police station daily.
[C] A condition not to enter any Bristol postcode.
[D] A condition not to contact, directly or indirectly, the tenant of the property in Bristol.
ANSWER
[B] To report to his local police station daily.
[A] Is not the best answer. A curfew condition is unlikely to be imposed as this was a daytime burglary and there is no suggestion that he has a propensity to commit burglaries at a particular time.
[B] Is the best answer. A condition of bail can be imposed if it necessary to ensure, amongst other things a surrender to custody. Here Errol’s community ties are very weak (he is living in the house of the parents of his girlfriend, who he met since his release from prison two months ago. Prior to that he was in custody). In addition, he has a motive to abscond given the likely sentence on conviction. He is clearly a serious flight risk and so daily reporting would ensure the local police knew where he was.
[C] and [D] are not the best answers. The conditions in [C] and [D] might be appropriate to protect the tenant if he was likely to be subject to witness interference or if the burglar might strike again. However, interference is unlikely as the witness is not contentious; and there is no evidence that Errol is likely to revisit.
You are prosecuting Max. He has pleaded not guilty to common assault on Sienna, who alleges Max punched her after their cars were involved in a road traffic incident and Max then drove off. The details of the car in which Max drove off led the police to him.
Sienna made a witness statement a few hours after the incident. Her witness statement included the registration number, make and model of the car in which Max drove off. You wish to adduce these details about the car in court in order to help establish that Max was the perpetrator.
At trial, Sienna reads her witness statement before going into court. She then gives evidence. During her evidence-in-chief she remembers the incident very well but when you ask her to describe the car her attacker was driving, she says she cannot remember the make, model or registration number. She says that she wrote down these details in her statement as best as she could remember them shortly after the incident and when her memory of the details was significantly better.
What is your best course of action?
[A] Ask Sienna if she would like to withdraw from the courtroom for another opportunity to read her witness statement.
[B] Make an application under CJA 2003 s.139 for Sienna to be permitted to refresh her memory from her witness statement in the course of giving her evidence.
[C] Make an application for the details of the car to be admitted as hearsay under CJA 2003 s.114(1)(d).
[D] Make an application for the details of the car to be admitted as a previous statement under CJA 2003 s.120.
ANSWER
[B] Make an application under CJA 2003 s.139 for Sienna to be permitted to refresh her memory from her witness statement in the course of giving her evidence.
[A] Not the best answer. Although it is usual for a witness to refresh their memory outside court before giving evidence, there is no need for mid-evidence memory refreshing to be done outside court and indeed s.139 CJA 2003, which is satisfied here, does not envisage it.
[B] The best answer. The conditions are satisfied and given the witness’s very limited difficulty there is no need for any other application.
[C] Not the best answer. An uncertain and complicated route, and unnecessary as the witness can give the evidence live once she has refreshed her memory.
[D] Not the best answer. Technically possible in order to adduce Sienna’s statement as evidence of the matters stated and to show consistency but these aims are not appropriate or desirable where, as here, she can give live evidence perfectly well with assistance from s.139.
Helen (aged 17) and Susan (aged 18) are jointly charged with theft. It is alleged that Helen played the major role in the offence. Both defendants have numerous previous convictions for theft. They appear in the magistrates’ court for plea before venue and allocation. Susan’s solicitor has told you that Susan will be pleading not guilty and electing Crown Court trial. You represent Helen. She intends to plead not guilty and asks you in which court will her trial take place.
What advice should you give to Helen?
[A] If the magistrates accept jurisdiction, Helen should elect Crown Court trial as she will have a better chance of acquittal in front of a jury.
[B] Due to Helen’s age, it is unlikely that the magistrates will consider it is in the interests of justice for her to be tried at the Crown Court and therefore her case will be remitted to the youth court for trial.
[C] Due to Helen’s age, it is unlikely that the magistrates will consider it is in the interests of justice for her to be tried at the Crown Court and therefore she will stay in the magistrates’ court for trial.
[D] It is likely that the magistrates will consider it is in the interests of justice for Helen to be tried at the Crown Court.
ANSWER
[D] It is likely that the magistrates will consider it is in the interests of justice for Helen to be tried at the Crown Court.
[A] Wrong. A youth does not have the right to elect Crown Court trial.
[B] Wrong. The test for the magistrates’ court is whether it is in the interests of justice for Helen to be tried in the Crown Court with Susan. Given that there is very little difference in age, Helen is 17 years old (so at the top end of the youth age range), Helen is accused of playing the major role and has numerous previous convictions so it is likely that the court will consider it is in the interests of justice for Helen to be tried at the Crown Court with Susan
[C] Wrong. Given the stated preference for answer D, it is wrong to say that trial for Helen in the Crown Court is unlikely. The second part of C is also wrong in that, if her case was not going to the Crown Court, she could be tried in either the magistrates’ court or the youth court.
[D] Correct. See feedback for [B] above.
You represent Kevin, who attends the magistrates’ court on the day of his trial and has a conference with you. You go to speak to the prosecutor about the case and when you have finished you cannot find Kevin. Members of court security staff tell you that Kevin got into an argument with another court user and was very abusive, which resulted in Kevin being arrested and taken to the police station. Enquiries reveal that Kevin is not likely to be released before the end of the court day.
The magistrates are ready to hear Kevin’s case and the prosecution are ready for trial. You apply for the magistrates to adjourn the trial.
What are they most likely to do?
[A] Proceed to trial because the reason for Kevin’s failure to appear is not an acceptable one as he has misbehaved at court.
[B] Proceed to trial because there is a statutory presumption in favour of doing so, and the court is not required to enquire into the reasons for non-attendance.
[C] Adjourn the trial because it would not be in the interests of justice to proceed as Kevin’s absence is involuntary.
[D] Adjourn the trial because Kevin’s right to a fair trial includes a right to be present and effectively participate.
ANSWER
[C] Adjourn the trial because it would not be in the interests of justice to proceed as Kevin’s absence is involuntary.
[A] Not the best answer. This echoes s.11(2A) of the MCA 1980; ‘the court shall not proceed in the absence of the accused if it considers there is an acceptable reason for his failure to appear’. In applying this test, however, the court would be likely to find that there is an acceptable reason in that the absence is involuntary.
[B] Not the best answer. There is such a presumption in the case of an adult (MCA 1980 s.11(1)(b)). Although the court is ‘not obliged to investigate if no reason is offered’, the reasons given will be taken into account.
[C] The best answer, correctly reflecting the test in MCA s.11(1)(b) and the likely outcome in light of the ‘involuntary absence’ cases. See also the power to adjourn.
[D] Not the best answer as it does not sufficiently reflect the reasoning which is to be found in the MCA s.11 and the case law referenced above.
You defend Darren, who is charged with ABH. It is alleged that after a minor car accident with Jim, Darren jumped out of his car shouting, “Look what you’ve done, I’m going to kill you!” Darren then punched Jim in the head causing a cut to Jim’s head. Darren denies that he shouted at Jim. He alleges that Jim deliberately drove at him and started a fight and that he, Darren, was only acting in self-defence. At trial, the prosecution want to adduce evidence of Darren shouting “Look what you’ve done, I’m going to kill you!”
What is the best advice to give Darren about the admissibility of this evidence?
[A] It is evidence of bad character within the meaning of the CJA 2003, so it may be admissible because it is relevant to an important matter in issue between the defendant and the prosecution.
[B] It is not evidence of bad character within the meaning of the CJA 2003, because it has to do with the alleged facts of the offence, but it may be admissible as it is relevant evidence.
[C] It is not evidence of bad character within the meaning of the CJA 2003, because it has to do with the alleged facts of the offence, but it may not be admissible as the prosecution have not charged Darren with threats to kill.
[D] It is evidence of bad character within the meaning of the CJA 2003, so it may be admissible because Darren has made an attack on Jim’s character.
ANSWER
[B] It is not evidence of bad character within the meaning of the CJA 2003, because it has to do with the alleged facts of the offence, but it may be admissible as it is relevant evidence.
[A] Not the best answer. It is not evidence of bad character within the meaning of the CJA 2003, as it has to do with the alleged facts of the offence, but it will be admissible as it is relevant to the facts of the offence.
[B] The best answer. The CJA 2003, s.98(a) states that evidence which has to do with the alleged facts of the offence is not evidence of bad character. It is therefore excluded from the definition of s.98, and is admissible, subject to relevance, as evidence of misconduct “which has to do with the alleged facts of the offence charged”. See also McNeill (2008) 172 JP 50 where the evidence admitted was a statement made two days after an alleged offence of threats to kill, in which the D reiterated to a third party her threat to kill the same person. Here, the threat is made at the time of the offence and is to do with the facts of the offence and is relevant to rebut his claim that he acted in self-defence.
[C] Not the best answer. It is not evidence of bad character, however the prosecution does not need to charge the separate offence in order for this to be admissible. See s.98(a) CJA 2003 (see A above).
[D] Not the best answer. It is not evidence of bad character. See s.98(a) CJA 2003 (see A above).
You represent Michael at his PTPH in the Crown Court. Michael has pleaded guilty to an offence of failing to take reasonable general fire precautions to ensure that premises are safe, contrary to the Regulatory Reform (Fire Safety) Order 2005 (an either-way offence with a maximum sentence of two years’ imprisonment). Michael is a private landlord who owns several multiple occupancy houses and he has acquired significant personal wealth as a result of his business activities. An inspection by the local authority of one of Michael’s houses revealed that the fire alarm system was disconnected from the mains power supply and was therefore ineffective. Following Michael’s guilty plea, the judge ordered a pre-sentence report and adjourned the matter for sentence.
At the sentencing hearing, the judge determines that the offence crosses the custody threshold. The author of the pre-sentence report has commented that none of the usual community requirements would serve a useful purpose in Michael’s case.
What is the most appropriate sentence for you to commend to the judge when she sentences Michael?
[A] A short immediate custodial sentence.
[B] A suspended sentence with an unpaid work requirement.
[C] A suspended sentence and a fine.
[D] A suspended sentence and a conditional discharge.
ANSWER
[C] A suspended sentence and a fine.
[A] is not the best answer. The judge has found that the offence crosses the custody threshold, but the maximum sentence for this offence is 2 years, so a suspended sentence could be ordered. There is nothing in the fact pattern which would make the passing of a suspended sentence unlawful, and you would not mitigate for immediate custody if a more favourable outcome was possible – see C below.
[B] is not the best answer. Unpaid work can be combined with a suspended sentence, but this is not the most appropriate sentence for Michael as it is more onerous for him to complete unpaid work than to pay a fine. Also, the probation officer has made an observation that none of the usual community requirements would serve a useful purpose here, and so [C] is the more appropriate sentence for the reasons set out below.
[C] is the best answer. A fine may be combined with a suspended sentence. Further, such a sentence is particularly apt when the offending is related to a defendant’s business or employment, when dealing with offenders of substantial means. Both these features are present.
[D] is not the best answer. A suspended sentence cannot be combined with a discharge when sentencing for a single offence.
You represent Alfred, who is charged with robbery, taking a motor vehicle without the owner’s consent (a summary offence) and driving while disqualified (a summary offence). It is alleged that he robbed a woman of her handbag and then drove away in a stolen car. He will be pleading not guilty to all offences and wants to know if he can be tried in the magistrates’ court for some or all his offences.
What should you advise him?
[A] The magistrates are likely to send all the offences to the Crown Court for trial.
[B] The indictable offence will be sent for trial to the Crown Court and the summary offences will stay in the magistrates’ court for trial.
[C] The indictable offence will be sent for trial to the Crown Court and the summary offences will be sent to the Crown Court for plea only.
[D] The indictable offence will be sent for trial and the summary offences will be committed for sentence to the Crown Court.
ANSWER
[A] The magistrates are likely to send all the offences to the Crown Court for trial.
[A] This is the best answer. The summary offences are linked offences to which s.40 applies and it is in the interests of justice for them to be tried together.
[B] This is not the best answer. It is unlikely that the court will order find it is the interests of justice to separate the trials given that the offences are linked and s.40 applies.
[C] This is not the best answer. The summary offences are s.40 offences so, if they are sent to the Crown Court, they are sent for trial rather than plea.
[D] This is not the best answer. Summary offences cannot be committed for sentence.
You prosecute Robert, who is charged with ABH. The prosecution case is that Robert hit the complainant on the back of the head. The complainant states he did not see his attacker and has no idea who it was. Robert denies the offence. An eyewitness, Steve, made a statement containing an account of the assault which supports the prosecution case, in which he describes where he was standing, the distance between him and the incident and the quality of his view, together with a description of the attacker.
Steve gave his details to the police but said he did not want to give evidence because he was frightened of violent repercussions, as in his area anyone who helps the police is targeted by gangs. The police attempted a number of times to persuade him to give evidence and explained special measures directions to him. Steve then made a second witness statement saying that since the incident he has seen someone loitering outside his house and has had a brick thrown through his window. He states that he will not give evidence even if special measures are put in place. Steve has two previous convictions for shoplifting, dating back five years.
Two other witnesses, who are prepared to attend court, identify a man they saw running away from the scene as Robert, and their descriptions of Robert match Steve’s description of the attacker.
You apply to adduce Steve’s statement about the incident under CJA 2003 s.116(2)(e) on the ground of fear.
What decision is the Court most likely to make in relation to the application?
[A] Refuse to admit the evidence because the police have not made all reasonable efforts to get Steve to court.
[B] Refuse to admit the evidence because there is no evidence of intimidation by Robert and therefore the ground of fear cannot be established to the required standard.
[C] Refuse to admit the evidence because it is central to the case and Steve’s previous convictions put his reliability in doubt.
[D] Admit the evidence because it is not the sole evidence; the jury can take Steve’s background into account if the judge considers it relevant and there is other evidence against which his reliability can be measured.
ANSWER
[D] Admit the evidence because it is not the sole evidence; the jury can take Steve’s background into account if the Judge considers it relevant and there is other evidence against which his reliability can be measured.
[A] Not the best answer. A lack of effort to get the witness to court would hinder admissibility but it is not the only factor to consider, and here the police have made a number of attempts to persuade Steve to give evidence, including discussing the possibility of special measures.
[B] Not the best answer. Evidence of intimidation by Robert would strengthen the prosecution position but there is no requirement that fear is attributable to the accused. Showing the causal link between fear and failure to testify, and specific evidence of fear, are more important.
[C] Not the best answer. Steve’s evidence is important but there is no hard and fast rule making it thereby inadmissible and there are tools available, including other witnesses, for testing his reliability. Previous convictions would be available as if the witness were present: CJA s.124.
[D] The best answer. See [C]. Also, the evidence is capable of challenge on the basis of quality of view etc.
You represent Shane, who appears before the magistrates’ court charged with theft of ten bottles of champagne (value £190) and criminal damage (value £2,000). The circumstances are that while in a supermarket he approached a stand containing bottles of champagne bottles. He grabbed ten of them and put them into his holdall. He then pushed the stand over, smashing the rest of the champagne bottles, and left without paying. He wants to know whether he can have a trial in the Crown Court in respect of both charges.
What is the correct advice to give him?
[A] No, as each of the offences is summary only he cannot elect Crown Court trial.
[B] Yes, as he can elect Crown Court trial for the theft and the criminal damage is a related offence.
[C] No, as the criminal damage is a summary only offence, he cannot elect Crown Court trial for either of the offences.
[D] Yes, as each of the offences is triable either way, he can elect Crown Court trial.
ANSWER
[B] Yes, as he can elect Crown Court trial for the theft and the criminal damage is a related offence
[A] is wrong. The criminal damage is treated as triable only summarily because of its value. Although the theft is a low value shoplifting and therefore triable only summarily, s22A(2) still allows the right of election for the theft.
[B] is correct. The theft is a low value shoplifting and therefore triable only summarily, s22A(2) still allows the right of election for the theft. The criminal damage is a related offence and will also be sent to the Crown Court for trial under s51(3) CDA 1998.
[C] is wrong. He has no right of election for criminal damage because it is treated as a summary offence, but this does not stop his right of election for the theft.
[D] is wrong. The offence of criminal damage is not triable either way due to its value. Whilst the theft offence is low value shop theft, it retains its right of election by virtue of s22A(2) MCA 1980.
You are defending Gavin, who is being prosecuted for historic sex offences against ten children. At the trial, the prosecution call Debbie, a parent of one of the children, to testify about what her child had told her about Gavin. During cross-examination, in response to a question that you have asked, Debbie says, “It is obvious that he has committed the offences; ten children wouldn’t all be making it up.”
Is Debbie’s response admissible?
[A] It is admissible. Debbie may express an opinion from the facts she has personally perceived about whether Gavin has committed the offence.
[B] It is inadmissible. Debbie may only give evidence of facts she has personally perceived and not evidence of her opinion of Gavin.
[C] It is inadmissible. Debbie may not give evidence of her opinion because she is not an expert on the commission of sex offences.
[D] It is admissible. Debbie may express her opinion of whether Gavin has committed the offence because this is not a matter calling for expertise.
ANSWER:
[B] It is inadmissible. Debbie may only give evidence of facts she has personally perceived and not evidence of her opinion of Gavin.
[A] Wrong: the general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts. The opinion Debbie is giving is not a permitted exception to the rule for ‘non-experts’
[B] This is the correct answer. See the answer to [A].
[C] Wrong. Debbie has not been called to provide expert opinion evidence but to testify to what her child told her them about Gavin. What Debbie’s child said to Debbie is not a matter calling for expertise.
[D] Wrong. Debbie may not express her opinion in this situation. The opinion Debbie is giving is not a permitted exception to the rule for ‘non-experts’. What Debbie’s child said to Debbie is not a matter calling for expertise. It does not follow that witnesses are qualified to express an opinion in matters not calling for expert opinion.
You are the judge in the case of Danny and yesterday you sentenced him to two years’ imprisonment for ABH. Danny was not represented as he had recently sacked his legal team, and you were not informed that he was on the hospital wing of the prison prior to attending for the sentencing hearing. Today, you have been sent a psychiatric report which was commissioned by his former solicitors, which concludes that there is a significant risk that Danny will commit further serious violent offences. In light of this report, you wish to hear submissions and make a decision as to whether Danny is a dangerous offender within the meaning of the CJA 2003 s.226A.
What action should you take in order to vary Danny’s sentence?
[A] You should use your discretion to rescind the original sentence and re-sentence Danny without a hearing.
[B] You should re-list the case within 56 days in order to vary the sentence (under the “slip rule”).
[C] You should invite the Attorney General to refer the sentence to the Court of Appeal, as only the Court of Appeal can vary a sentence once it has been pronounced in open court.
[D] You should take no action; the power to vary sentence cannot be used to impose a more punitive sentence and it is for the prosecution to decide whether to refer the sentence to the Court of Appeal.
ANSWER
[B] You should re-list the case within 56 days in order to vary the sentence (under the “slip rule”).
[A] Wrong. A sentence must be pronounced, reasons given, and the effect of the sentence explained.
[B] Correct. A Crown Court judge can vary a sentence, including by imposing a more punitive sentence, within 56 days of the sentence being passed: Sentencing Act 2020 s.385
[C] Wrong. A Crown Court judge can vary a sentence, including by imposing a more punitive sentence, within 56 days of the sentence being passed: see [B] above.
[D] Wrong. The slip rule can be used to impose a more punitive sentence.
HHJ Singh has been trying a case at the Crown Court involving an allegation of robbery. Evidence has been given of the Defendant’s police interview, during which he advanced a defence of alibi. However, while giving evidence in the trial, the Defendant admitted lying to the police and now relies upon the defence of duress. The judge has been considering whether to give the jury a Lucas direction or a direction under s.34 of the Criminal Justice and Public Order Act 1994. After much consideration she has decided to give both.
Tomorrow, counsel will make their final speeches and the judge will sum up the case to the jury. The judge is concerned about what, if any, action she should take concerning the proposed Lucas / s.34 directions she is proposing to make.
Which of the following best describes what the judge should do in the circumstances?
[A] She should invite representations from counsel, immediately before she sums up the case to the jury, as to the appropriateness of the proposed directions.
[B] She should invite representations from counsel, immediately after the summing-up, but before the jury’s retirement, as to the appropriateness of the directions given.
[C] She should invite representations from counsel, before they make their final speeches to the jury, as to the appropriateness of the proposed directions.
[D] She can proceed to sum up the case without seeking representations from counsel because if she errs in her summing-up, the defence has the option of appealing any conviction to the Court of Appeal.
ANSWER
[C] She should invite representations from counsel, before they make their final speeches to the jury, as to the appropriateness of the proposed directions.
[C] best describes what the Judge should do. As the Judge has more than one option as to how to sum up the law, the best course would be to seek the representations of counsel. This should be done before speeches. It follows that the advice in [A] does not best describe what the Judge should do: counsel should know how the judge proposes to sum up the law before they make their speeches.
The course in [B] will only be appropriate in very exceptional circumstances: R v Cocks. No exceptional circumstances are indicated by the fact pattern.
Whilst in many cases it is not necessary to seek representations from counsel as to how the law should be dealt with, it has become increasingly common to do so where there is a possibility of misunderstanding or doubt. For that reason, the advice in [D] is not the best.
The defence wish to challenge the quality of the prosecution evidence in a case of s.20 GBH which is being sent for trial in the Crown Court.
What is the correct course of action for the defence?
[A] No challenge may be made until the end of the prosecution case at the defendant’s Crown Court trial.
[B] An application for dismissal may be made to the Crown Court.
[C] An application for dismissal must be made in the magistrates’ court.
[D] An application for dismissal may only be made in writing to the Crown Court.
ANSWER
[B] An application for dismissal may be made to the Crown Court.
[A] Wrong. CDA 1998 sch. 3 para.2 makes it clear that an application for dismissal may be made well before the actual trial of a Defendant.
[B] Correct. CDA 1998 sch. 3 para.2 makes it clear that such an application may be made.
[C] Wrong. An application for dismissal is made to the Crown Court: CDA 1998 sch. 3 para.2.
[D] Wrong. An application for dismissal is made to the Crown Court: CDA 1998 sch. 3 para.2. The application can be made orally (after giving written notice) or in writing.
André is being tried for rape. The prosecution case is that the complainant, Lisa, met André at a club and invited him to her flat. Lisa says André had sex with her without her consent while in the flat.
Lisa reported the matter to the police. She told them she knew his name and where he worked because he was wearing a T-shirt with the company name on. She also told the police that he spoke with a South African accent.
The officer in the case, DS Harper, called André at work and recorded the call. DS Harper introduced herself as a police officer and asked André to confirm his name and where he was, which he did. She then explained that a complaint had been made by Lisa and asked him questions about the incident. André told DS Harper that he had met Lisa and gone back to her flat where they had consensual sex. After the call, André was arrested and interviewed, during which he refused to answer any questions.
In André’s defence statement he denies the offence entirely and says he did not go back to Lisa’s flat. The defence apply to have the entire recording of the phone call excluded under PACE 1984 s.76 because DS Harper had not cautioned André before questioning him about the incident. The prosecution agrees that the questions and answers regarding the alleged offence should be excluded in this case. However, in order to demonstrate that André speaks with a South African accent, the prosecution want to play the beginning of the telephone call at trial, where André confirmed his name and where he was.
Which of the following is the trial judge most likely to do in response to the prosecution application?
[A] Allow the jury to listen to those parts of the recording which are necessary to demonstrate André’s accent, but should refuse to allow them to hear any part of it that is adverse to him.
[B] Refuse to allow the jury to listen to any part of the recording because the Prosecution agree that the questions and answers about the incident should be excluded under s.76.
[C] Allow the jury to listen to the recording because it is admissible to demonstrate André’s accent. She should then give the jury a direction about why the recording is being played and tell them not to take account of the confession when deciding the case.
[D] Make no ruling but indicate that she will revisit the issue at the close of the defence case. Provided that the Defendant has given evidence, so that the jury are able hear his accent, she will refuse to allow the recording to be played.
ANSWER
[A] Allow the jury to listen to those parts of the recording which are necessary to demonstrate André’s accent, but should refuse to allow them to hear any part of it that is adverse to him.
[A] is the best decision. Section 76(4)(b) makes admissible as much of the excluded confession evidence as is necessary to show that the accused speaks in a particular way. Care must be taken to avoid prejudice to the accused when adducing such evidence; s. 76(4)(b) permits the prosecution to adduce only ‘so much of the confession as is necessary to show’ the relevant feature, but even this may in some cases be impossible without the jury becoming aware that a confession has been made.” In this case the jury should be played those parts of the recording that allow them to judge André’s accent (i.e. his personal details and location, but not the portions of the conversation where he makes admissions about the offence).
[B] is not the best decision. This answer does not take account of section 76(4)(b) which specifically makes provision for a confession excluded under section 76 to be admitted (or such parts of it are necessary) in order to show the accused speaks in a particular way.
[C] is not the best decision. This course of action is not legally wrong and a direction to the jury could reduce the prejudice suffered by the accused in certain cases. Further, there may be situations where the whole confession has to be admitted in order to give effect to section 76(4)(b) but that is not the case here.
[D] is not the best decision. This answer appears to put pressure on the defendant to have to give evidence in his own trial, which he cannot be compelled to do. The question for the court in this case is whether the recording (or parts of it) can safely be admitted pursuant to section 76(4)(b), if it can then it should be admitted. If it cannot then the court can use section 78 or common law to exclude it. The answer is not contingent on whether D gives evidence irrespective of whether this would achieve the same end as playing the recording.
cross examining the principal prosecution witness, Fred (George’s employer), you put to Fred that he had invented the alleged loss in order to further an insurance claim. George is not going to give evidence. He has a previous conviction from 33 years ago for indecent (now known as ‘sexual’) assault on a young boy. The prosecution seek to adduce evidence of this conviction as bad character under CJA 2003 s.101 (1)(g).
What is the best argument with which to oppose the prosecution’s application?
[A] That the previous conviction does not amount to bad character because it is old and spent.
[B] That the prosecution should not be allowed to adduce his previous conviction because George is not giving evidence.
[C] That the court must not admit evidence of the previous conviction because it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
[D] That the previous conviction is not admissible as it is not relevant to an important matter in issue between the defendant and the prosecution.
ANSWER
[C] That the court must not admit evidence of the previous conviction because it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
[A] is not the best answer because the fact that the conviction is old does not mean that it cannot be bad character, but this would be part of the s.101(3) argument.
[B] is not the best answer because the court may admit evidence of bad character even where a defendant is not giving evidence.
[C] The prosecution is making the application under gateway s101(1)(g). Although you might argue that you had done no more than deny guilt, given the fact that you suggested a purpose for the telling of lies by the witness this is unlikely to succeed. Since the application is under s101(1)(g), s101(3) applies and an argument under that provision is the best one to make in the circumstances.
[D] is wrong because s.101(1)(d) propensity is not the appropriate gateway in this case.
You are defending Nellie at her forthcoming PTPH on one count of aggravated burglary (an indictable-only offence). The prosecution have served evidence of their case against Nellie, who denies participation in the offence.
The prosecution case is that the burglar knocked on the door of an elderly man, threatened him, tied him to a chair and stole a laptop and mobile phone. There is no evidence that the burglar had a weapon with her when she entered the property or at any other time during the commission of the offence (an essential ingredient of an aggravated burglary).
What is the best approach to take in respect of the aggravated burglary?
[A] At the PTPH, you should identify on the PTPH form the absence of evidence of a weapon as an issue for trial.
[B] At the PTPH, you should not make any reference to the absence of evidence of a weapon, but instead should raise it at trial in a submission of no case to answer.
[C] Prior to the PTPH, you should draft and serve a written notice applying to dismiss the charge.
[D] At the PTPH, after Nellie has entered her not guilty plea, you should make an oral application to dismiss the charge.
ANSWER
[C] Prior to the PTPH, you should draft and serve a written notice applying to dismiss the charge.
[C] Is the best approach because there is not sufficient evidence for Nellie to be properly convicted of the aggravated burglary and she is therefore entitled to apply for it to be dismissed. This must be done prior to the date of arraignment and can only be done if the defendant “gives written notice of intention to do so.”
[A] Is not the best approach because it does not allow for an application to dismiss to take place. The defendant’s best interests are served by having the aggravated burglary dismissed before she is required to enter a plea to it and stand trial. If it is not dismissed at this stage there is a chance that the prosecution could rectify the evidential defect prior to any trial.
[B] Is not the best approach for the same reason that is set out in [A] above.
[D] Is not the best approach because once Nellie has been arraigned the court has no power to entertain an application to dismiss a charge or count. Additionally, an oral application may not be made unless written notice has been given.
You represent Jack, who has pleaded guilty to an offence of aggravated vehicle taking (an either-way offence). Jack admits to using a screwdriver to break into his father’s car, which he then took without consent. Whilst Jack was driving the car he was involved in a road traffic accident which resulted in damage to the car. Jack was found in the driver’s seat and was arrested. When he was booked into custody and searched, £100 in cash and a screwdriver were found in his jacket pocket.
Jack wants to know whether the magistrates can order deprivation of the car, screwdriver and cash.
What is the correct advice to give Jack?
[A] They should not order deprivation of the car, as it belongs to his father, but they could require Jack to forfeit the screwdriver and the cash.
[B] They could require Jack to be deprived of the car and the screwdriver as both are items which were used to commit or facilitate the offence, but not the cash as it was not used to facilitate the offence.
[C] They should not order deprivation of either the car or the cash, because the car belongs to his father and the cash was not used for the purpose of committing the offence, but they could require Jack to forfeit the screwdriver.
[D] They could require Jack to be deprived of the car, the screwdriver and the cash as they were all in his possession at the time of arrest.
ANSWER
[C] They should not order deprivation of either the car or the cash, because the car belongs to his father and the cash was not used for the purpose of committing the offence, but they could require Jack to forfeit the screwdriver.
[A] Wrong, as following S.A. 2020 s.153(3) any item for deprivation needs to have been used for the purpose of committing or facilitating the offence. The cash was not so used. Also, the power should not be extended to items which are not owned by the defendant. See Hall [2015] RTR 86(9), 2014 EWCA Crim 2413.
[B] Wrong as the power of deprivation should not be extended to items which are not owned by the defendant.
[C] Correct. The order does not fall foul of either of the points raised in [A] or [B] above.
[D] Wrong. Deprivation of the car under s.153 is not possible as it does not belong to Jack, and the cash was not used for the purpose of the offence (see [A] above).
You are defending Rahim, who has been charged with s.18 wounding. The allegation against Rahim is that he was part of a violent gang outside a football stadium where he struck PC Evans with a broken bottle and then fled the scene. PC Evans later gave a statement in which he described a man coming out of the crowd and striking him with a bottle. PC Evans stated that although it was night-time, the area was well lit, and he had a good view of his attacker for about 5 seconds.
Two months later, Rahim was arrested after PC Evans saw him in the street and recognised him as his attacker. When interviewed under caution, Rahim denied being present outside the stadium and claimed that he was at his brother’s house at the relevant time.
At trial, Rahim was cross-examined on the basis that he had fabricated his alibi; that he was at the scene of the disorder, and he was responsible for the attack on PC Evans. Rahim denied this. His brother Micah initially supported Rahim’s alibi. When Micah gave evidence, however, the prosecution was able to demonstrate from social media posts that on the night of the incident, Micah was abroad. Micah accepted he must have been mistaken and that he was in fact with his brother the following evening after his return to the UK.
At the end of the trial, the judge has indicated that he is going to give a Turnbull direction. The prosecution argue that the jury are entitled to use the false alibi as support for PC Evans’ identification of Rahim at the scene. You want to argue that the jury should not be able to use the evidence to support the identification.
What is your best submission?
They may only use the false alibi as supporting evidence if:
[A] they are sure that Rahim’s brother, Micah, deliberately made up the alibi and can discount any possible innocent motive for it.
[B] they are sure that Rahim deliberately made up the alibi and can discount any possible innocent motive for it.
[C] they are sure that the alibi is untrue.
[D] they are first sure that PC Evans has correctly identified Rahim as his attacker.
ANSWER
[B] they are sure that Rahim deliberately made up the alibi and can discount any possible innocent motive for it.
[A] is not the best submission. The crucial question for the jury is whether by providing a false alibi or telling lies the defendant has incriminated himself and consequently whether that self-incrimination can support the identification evidence. The alibi was initially given by Rahim and although Micah has resiled from it, the jury could not use that as supporting evidence unless they were sure that Micah had deliberately lied about being with his brother and that there was no innocent explanation for the lie. The third condition set out in relation to proving the lie is already met by the social media evidence.
[B] is the best submission. The governing principles in relation to self-incrimination by false alibis or other lies, as set out by the Court of Appeal in Lucas [1981] QB 720, have now been held applicable in identification cases. Before such lies can be regarded as supporting an identification, they must accordingly be shown to be deliberate and material; the court or jury must be able to discount any possible innocent motive for the lies and they must be proved to be lies by evidence other than the identification(s) that they are to support. Consequently, this submission represents the best restatement of the applicable law.
[C] is not the best submission. The submission is not wrong, but it does not go far enough. The jury must be sure that the alibi is false, but they also have to be sure that Rahim deliberately invented it and they must be able to discount the possibility of an innocent motive for the false alibi.
[D] is not the best submission. The point here is whether the self-incriminating evidence of the false alibi (if it is false) is capable of supporting PC Evans’ identification evidence. If the jury were sure that PC Evans’s identification was correct, then there would be no need to seek support for their finding in the false alibi.
You prosecute Seamus, who is charged with raping Stephanie. Seamus denies the offence. He claims that they kissed but did not have sexual intercourse. The case has been sent to the Crown Court for trial.
During the investigation, the police downloaded several hundred text messages passing between Stephanie and her best friend Carol, many of which refer to Seamus. These messages do not appear either to undermine the prosecution case, nor do they appear to assist the defence case.
You are asked to advise as to the obligations of the police and of the Crown Prosecution Service in relation to these text messages.
Which of the following statements is correct?
[A] The police have an obligation to retain a record of the text messages if they could reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defence.
[B] The police have an obligation to retain a record of the text messages if they may be relevant to the investigation, whether or not they appear to assist either party.
[C] The disclosure officer should include the record of the text messages as an item on a schedule of sensitive unused material.
[D] The Crown Prosecution Service should disclose the record of the text messages to the defence as part of initial disclosure.
ANSWER
[B] The police have an obligation to retain a record of the text messages if they may be relevant to the investigation, whether or not they appear to assist either party.
[A] is wrong because material does not have to fall into CPIA s.3 in order for there to be an obligation to be retained. The correct test is as set out in [B] below.
[B] is correct as investigators are responsible for recording and retaining all material which ‘may be relevant to the investigation’.
[C] is wrong. The only material that should be included on the sensitive material schedule is material that would give rise to a real risk of serious prejudice to an important public interest if disclosed.
[D] is wrong as the material does not pass the test in CPIA s.3.
Forest (aged 14) wishes to appeal against his conviction and sentence. He appeals to the Crown Court.
Which of the following statements is correct?
[A] The composition of the panel to hear the appeal at the Crown Court must always comprise a circuit judge or recorder and two lay magistrates (one man and one woman).
[B] The defence must give notice of appeal in writing within 20 business days of the sentence being passed.
[C] An appeal against conviction is a complete rehearing of the trial. If the parties wish to call evidence which was not relied upon at trial in the lower court, they must apply for leave from the Court to rely upon any new evidence.
[D] If notice of appeal is served within the time limit, no leave to appeal is required.
ANSWER
[D] If notice of appeal is served within the time limit, no leave to appeal is required.
[A] Is wrong because in exceptional circumstances the Crown Court may include only one Justice of the Peace and need not include both a man and a woman if the presiding judge decides that the hearing will otherwise be reasonably delayed.
[B] Is a wrong answer - because notice of appeal must be given in writing within 15 business days of sentence being passed.
[C] Is a wrong answer - because leave is not required to call new evidence.
[D] Is the correct answer because - leave is not required if the notice is served within the relevant time.
Alicia is arrested for possession with intent to supply Class A drugs. She was interviewed by the police under caution, with a solicitor present, and made no comment to all questions asked. At her Crown Court trial, when giving evidence, Alicia states that the reason she made no comment was because her solicitor advised her to do so.
Which of the following correctly explains the effect of this statement?
[A] Alicia has waived privilege by revealing the advice from her solicitor.
[B] Alicia has not waived privilege, as this statement does not amount to a waiver of privilege.
[C] Alicia has not waived privilege as she had to provide such information in order to defend herself adequately.
[D] Alicia has not waived privilege because only her solicitor, as the person who gave the advice, can waive privilege.
ANSWER
[B] Alicia has not waived privilege, as this statement does not amount to a waiver of privilege.
[A] is wrong as by simply stating that she had received legal advice to answer no comment does not amount to a waiver of privilege – see Condron (1997).
[B] is correct. The reason given by an accused for not answering is that he has been so advised by his solicitor. That advice does not amount to a waiver of privilege.
[C] is wrong. Although Alicia has not waived privilege in these circumstances the reason given is wrong – just because a defendant needs to put something forward as part of their defence, does not protect them from waiving privilege. A defendant can waive privilege by answers they give while giving evidence.
[D] is wrong. Although Alicia has not waived privilege the reason is wrong. A waiver of privilege can occur whether the revelation is made by the accused or the solicitor on behalf of the accused.
You are prosecuting Tristan, who is charged with common assault at a party. Tristan denies being the aggressor. His brother Matthew, who was at the party, is due to give evidence in support of Tristan.
You call Alice, who was also at the party, to give evidence, and she describes Tristan as the aggressor. Once she has finished her evidence, you are informed by the officer in the case that, during Alice’s evidence, someone was in the public gallery making notes. The officer then saw that person talking to Matthew and the officer believes they were describing Alice’s evidence to him.
When Matthew gives evidence, you cross-examine him about whether he spoke to the person at court, which he denies.
What is the most appropriate course of action for you to take?
[A] Apply to exclude Matthew’s evidence as he has potentially received information from this person, which he should not have.
[B] As you have put the point to Matthew, you can comment about it in your closing speech, without needing to call further evidence on it.
[C] Call evidence to contradict Matthew’s denial.
[D] There are no further steps you should take, as you cannot call evidence to contradict Matthew’s denial.
ANSWER
[C] Call evidence to contradict Matthew’s denial.
[A] Is not the best answer as you should at this stage call evidence in rebuttal to contradict the account given by Matthew. Evidence to contradict a witness’s denial of bias or partiality is admissible, to show he is prejudicial concerning the case being tried (Mendy (1976) 64 Cr App R 4).
[B] Is not the best answer as you should at this stage call evidence in rebuttal (see above). Whilst you can comment in your speech, you should also call evidence in rebuttal of what has been seen in order to disprove Matthew’s account.
[C] Is the best answer. You should call evidence in rebuttal to contradict the account given by Matthew as evidence to contradict a witness’s denial of bias or partiality is admissible, to show he is prejudicial concerning the case being tried. See case of Mendy (1976) 64 Cr App R 4. In that case, the Court of Appeal held that the trial Judge had been right to allow the prosecution to call evidence in rebuttal as the husband had been involved in a situation which was designed to defeat the purpose of keeping prospective witnesses out of court to enable him to give more convincing evidence of his account.
[D] Is not the best answer as you should now call evidence in rebuttal of Matthew’s denial and are able to do so. See [C] above.
