Criminal Law

Question 1

What is the role of the custody officer?

Answer 1

The custody officer:
1. is responsible for the handling and welfare of suspects in detention at the police station;
2. must be a police officer of the rank of at least sergeant;
3. must be unrelated to the process of the investigation of the offence.

Question 2

What is the custody record and what must it include?

Answer 2

All information required to be recorded under COP C must be recorded on the custody record:
1. requirement to inform the person of the reason for his arrest;
2. the circumstances of the arrest;
3. why the arrest was necessary; and
4. any comments made by the arrested person.

Question 3

When is a review of detention conducted?

Answer 3

Reviews of detention must be carried out during the detention of a suspect (s 40).

The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

First review will take place six hours and reviewed every nine hours.

Question 4

What is the detention time limit and when can it be extended?

Answer 4

The maximum period that a suspect can be kept in custody, before being charged, is 24 hours from the ‘relevant time’.

The detention can be extended by further 12 hours:
1. before the expiry of the initial 24 hours but after the second review has occurred;
2. grounds for extensions must be set out to suspect;
3. the suspect and/or the suspect’s solicitor should be allowed an opportunity to make representations.

Criteria:
1. an officer of at least the rank of superintendent must authorise the continued detention;
2. the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning;
3. the offence must be an indictable offence; and
4. the investigation must be being conducted diligently and expeditiously.

Question 5

When can power to detain be used?

Answer 5

If the police want to detain beyond 36 hours then they must apply to the magistrates’ court for a warrant of further detention under ss.43 and 44 PACE.

The warrant may authorise continued detention for a further 36 hours on a first application and 36 hours (up to a maximum of 96 hours) on a second application.

The same criteria apply as under s.42 and ss.43 and 44 stipulate that:
- the magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;
- the offence must be an indictable offence; and
- the investigation is being conducted diligently and expeditiously.

Question 6

When must the person detained be told of his right to free legal advice?

Answer 6

Before:
1. the commencement or recommencement of an interview;
2. being asked to provide an intimate sample;
3. an intimate drug search;
4. an identification parade or video identification procedure.

1. declined legal advice must be noted on the custody record;
2. await solicitor before commencing interview;
3. do not dissuade from seeking legal advice;
4. If the detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice.

Question 7

When can the power to delay the right used?

Answer 7

Right can only be delayed up to a maximum of 36 hours.

Criteria:
1. the person must be in detention for an indictable offence; and
2. the authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of superintendent; and
3. the superintendent has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
* interference with/harm to evidence connected with an indictable offence;
* interference with/harm to others;
* alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
* hinder the recovery of property obtained in consequence of the commission of such an offence.

Question 8

What are the four rights of a detained person?

Answer 8

1. Right to consult a solicitor;
2. Right to have someone informed of the arrest;
3. Right to an appropriate adult;
4. Right to an interpreter.

Question 9

When can the right to have someone informed of the arrest be delayed?

Answer 9

Criteria:
1. the person must be in detention for an indictable offence; and
2. the authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of inspector; and
3. the inspector has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
* interference with/harm to evidence connected with an indictable offence;
* interference with/harm to others;
* alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
* hinder the recovery of property obtained in consequence of the commission of such an offence.

Question 10

What is the role of the appropriate adult?

Answer 10

The role of the appropriate adult is to:
a) ensure that the detained person understands what is happening and why;
b) support, advise and assist the detained person;
c) observe whether the police are acting properly and fairly and to intervene if they are not;
d) assist with communication between the detained person and the police; and
e) ensure that the detained person understands their rights and that those rights are protected and respected.

Question 11

What are the rules on treatment of suspects in a police station?

Answer 11

COP C 8
- So far as practicable, not more than one detainee should be detained in each cell;
- cells must be adequately heated, cleaned and ventilated;
- bedding must be supplied;
- toilet and washing facilities made available;
- if a detainee’s clothes have been removed, replacement clothing of a reasonable standard shall be provided; and
- two light meals and one main meal should be provided every twenty-four hours.

Question 12

What is the caution that must be given to a suspect being interviewed?

Answer 12

‘You do not have to say anything. But it may harm your defence if you do not mention when question something which you later rely on in court. Anything you do say may be given in evidence.’

Question 13

What are the police rankings?

Answer 13

• Constable;
• Sergeant;
• Inspector:
• Chief Inspector;
• Superintendent; and
• Chief Superintendent.

Question 14

How can confessions be challenged?

Answer 14

1. s 76(2) - confession gained from ‘oppression’ or ‘unreliability’.
2. oppression must have caused the confession;
3. things said or done must have caused the confessions of unreliability; and
4. existence of either oppression or unreliability does not automatically exclude such evidence instead the court must grant the defence’s application.
5. s 78 - exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.
   - exclude any evidence upon which the prosecution seeks to rely.

Question 15

What should the solicitor do in the course of attending an interview?

Answer 15

1. Obtaining as much information from the police as is possible;
2. Advising your client fully and in accordance with your professional obligations;
3. Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of period of detention, searches of premises and bail;
4. Attending and advising during the interview.

Question 16

What is the role of the appropriate adult?

Answer 16

If a person is vulnerable, an appropriate adult should be appointed and their role is to:
1. ensure that the detained person understands what is happening and why;
2. support, advise and assist the detained person;
3. observe whether the police are acting properly and fairly and to intervene if they are not;
4. assist with communication between the detained person and the police: and
5. ensure that the detained person understands their rights and that those rights are protected and respected.

Question 17

Who can act as an appropriate adult?

Answer 17

The appropriate adult (18 years) can be:
1. parent; or
2. a guardian; or
3. a relative; or
4. someone who has experience in dealing with such persons.

Question 18

What can a solicitor do to avoid breaching any professional conduct rules?

Answer 18

Not accept instructions from:
1. a relative or third party unless you are satisfied that the person giving instructions has authority to do so on behalf of your client; or
2. two clients in relation to the same matter and one client blames, or might blame, the other.

Question 19

What are the three options available to the client to respond in police interviews?

Answer 19

1. Answer questions;
2. Don’t answer questions (no comment);
3. Provide a written statement (no comment).

Question 20

What are the three sections that regulate adverse inferences?

Answer 20

section 34 - inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning.

section 36 - when the suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed.

section 37 - failing to explain why they were found on a burglary victim’s driveway.

Question 21

When must a caution for s 34 be given?

Answer 21

R v Argent: (‘circumstances existing at the time’)
1. what disclosure had been made to the suspect, or their lawyer, by the police;
2. what information can the prosecution demonstrate the suspect knew at the time of questioning or charge;
3. the condition and circumstances of the suspect; and
4. any legal advice that the suspect received.

Question 22

What is the procedure to make inferences under s 36 & 37?

Answer 22

Arise as soon as there is a failure by the defendant to account for their possession of an object or presence.

A special warning must be given:
1. what offence is being investigated;
2. what fact they are being asked to account for:
3. this fact may be due to them taking part in the commission of the offence;
4. a court may draw proper inference if they fail or refuse to account for this fact;
5. a record is being made of the interview and it may be given in evidence if they are brought to trial.

Question 23

What is the function of s 38?

Answer 23

No defendant may be convicted solely based on adverse inference.

Question 24

What is the function of PACE C paragraph 6.6 and Annex C?

Answer 24

No adverse inference can be drawn where the suspect has not been allowed access to legal advice.

Question 25

What are the three forms of commencing criminal proceedings?

Answer 25

1. Arrest and charge;
2. Written charge and requisition:
3. Laying an information.

Question 26

When can suspects be arrested and charged?

Answer 26

1. at the end of the period of detention at the police station after an arrest;
2. after a period of police bail when the suspect re-attends the police station; or
3. after a period on police bail while the CPS decides what the appropriate charge, if any, is.

Question 27

What is a written charge and requisition?

Answer 27

1. a requisition requires a person charged to attend a magistrates’ court.
2. The charge and requisition must be served on the person charged and on the magistrates’ court at which that person is to attend.
3. Only for ‘relevant prosecutors’ (CPS etc.)

Question 28

What is the statute of limitations for a charge?

Answer 28

No statute of limitation for a charge to be brought. Unless s 127 Magistrates’ Courts Act 1980 applies where summary only offences must be made within six months of the date of the alleged offence.

Question 29

Which are summary offences?

Answer 29

1. Assault;
2. Battery;
3. simple criminal damage where the value is £5,000 or less (is treated as summary only).

Question 30

What are either-way offences?

Answer 30

1. Theft
2. Burglary
3. Fraud
4. ABH
5. GBH
6. Simple criminal damage where the value exceeds £5,000;
7. Simple arson.

Question 31

What are indictable offences?

Answer 31

1. Robbery
2. Wounding or GBH with intent
3. Aggraved burglary
4. Aggraveted arson
5. Aggravated criminal damage
6. Murder
7. Involuntary manslaugther

Question 32

In the case of criminal damages, when is the act considered a summary, either-way or indictable offence?

Answer 32

1. Summary = value is below £5,000
2. Either-way = value above £5,000.
3. Value is uncertain = elect to either mags or crown court.

Question 33

When should an identification procedure be held?

Answer 33

1. An offence has been witnessed and an eye-witness:
   
   • has identified a suspect or purported to have identified them: or
   • is available who expresses an ability to identify the suspect; or
   • has a reasonable chance of being able to identify the suspect.
2. The suspect disputes being the person the eye-witness claims to have seen.

Question 34

What are different types of identification procedures?

Answer 34

1. video identification;
2. identification parade;
3. group identification.

(must be conducted by an ‘identification officer’ not below the rank of inspector not involved with the investigation)

Question 35

What are the formalities of using video identification procedures?

Answer 35

1. A record shall be made of the description of the suspect as first given by the eye-witness;
2. A copy of the record shall be given to the suspect or their solicitor before any identification procedures are carried out;
3. A notice with:
   
   • purpose of the procedure
   • their entitlement to free legal advice
   • the procedures and inform of their right to have a solicitor or friend present;
   • that they do not have to consent to or co-operate in the procedure;
   • that if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements.
4. The suspect shall be invited to participate in a video identification procedure first.

Question 36

What are the formalities of identification parades?

Answer 36

1. reasonable opportunity to have a solicitor or friend present;
2. the identification parade shall consist of at least eight people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life.
3. Any distinctive physical features shall be covered up.
4. suspect may select their own position in the line.

Question 37

What are the formalities of Group identification procedures?

Answer 37

1. Group identifications may take place either:
   
   • with the suspect’s consent and co-operation; or
   • covertly without their consent.
2. location should be one where other people are either passing by or waiting around informally;

Question 38

What are the consequences of Breach of Code D?

Answer 38

Application for voir dire may be made where an application to exclude evidence may be sought under s 78 PACE 1984.

If the evidence is admitted into evidence despite a breach, then:
- defence advocates are still permitted to comment on the breach in their closing speech;
- the trial judge ought to draw the jury’s attention to the breach and invite them to consider the reasons why the code been drawn in the way it has;
- the jury should assess whether in their estimation the breaches were such as to cause them to have doubts about the safety of the identification.

Question 39

When is the first hearing held?

Answer 39

Where the defendant is on bail, the first hearing must be within:
1. 14 days of being charged (if magistrates’ court); or
2. 28 days of being charged (Crown Court).

All adult defendant have their first hearing in a magistrates’ court.

Question 40

What are the consequences of failing to appear at the first hearing?

Answer 40

1. If the defendant on bail fails to attend:
   - failure to surrender to bail at the appointed time is an offence.
   - The court will consider whether to proceed with the hearing anyway.
2. If the defendant has been summoned to court (non-imprisonable, minor or road traffic offences):
   - case can proceed in the absence of the defendant.
   - If convicted, then the penalty can also be imposed in absentia.

Question 41

When must the Initial Details of the Prosecution’s case be served?

Answer 41

The prosecution is obliged to serve the IDPC as soon as practicable and in any event, no later than the beginning of the day of the first hearing.

The failure to supply IDPC is not a ground to dismiss a charge or give rise to an abuse of process application.

The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.

Question 42

When must the magistrates’ court order a Pre-sentence report (‘PSR’) to the Crown court?

Answer 42

1. if there is a realistic alternative to a custodial sentence; or
2. the defendant may be dangerous offender; or
3. if there is some other appropriate reason for doing so.

Question 43

What is the magistrates’ court’s approach to allocation if the suspect indicates a not-guilty plea?

Answer 43

1. the court’s sentencing powers would be insufficient i.e. the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) after taking into account personal mitigation and any potential reduction for a guilty plea; or
2. for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.

Question 44

What are some of the factors to elect for a Crown Court trial?

Answer 44

Magistrates’ court
1. less formal;
2. waiting time before the trial is much shorter;
3. do not require a defendant to serve a defence statement;
4. cheaper.

Crown Court
1. acquittal rate is higher in the Crown Court; and
2. the separate tribunals of law and fact in the Crown court can be advantageous to the defendant. Voire dire etc.

Question 45

Under which circumstances may cases be sent to the Crown court?

Answer 45

Indictable only
- always sent to the Crown Court;

Either-way offences
- Committed for sentence following a guilty plea;
- Committed for sentence after trial in the magistrates’ court;
- Sent for trial where the court has declined jurisdiction following a not guilty plea;
- Sent for trial where the court has accepted jurisction following a not guilty plea but the defendant elects Crown Court trial;
- cases involving complex fraud or where children may be called as witnesses when notice has been given.

Question 46

What are grounds upon which the prosecution can object to a suspect’s rights to bail?

Answer 46

1. ‘indictable offences
   - any of the following three grounds based on substantial grounds for believing unless there is no real prospect of custodial sentence:
   i) fail to attend a subsequent hearing (failure to surrender to custody)
   ii) commit further offences on bail; and/or
   iii) interfere with witnesses, or otherwise obstruct the course of justice e.g. witness intimidation or destruction of evidence.

Question 47

What are the ‘factors’ to consider in a bail application?

Answer 47

1. the nature and seriousness of the offence and the likely disposal;
2. the character of the defendant, D’s antecedents, associations and community ties;
3. the defendant’s bail record in the past;
4. the strength of the evidence.

Question 48

Where must an application to vary bail conditions be lodged?

Answer 48

Application to very bail conditions can be made by the defence or the prosecution on advance notice to the other party.

The application should be made to the court which granted bail (or CC if the accused ahs been sent for trial or committed for sentence).

If the parties agree on the variation, the court may decide to vary a bail condition without a hearing.

Question 49

Which breach of bail is a criminal offence?

Answer 49

Failing to surrender:
- punishable summarily by up to three months’ imprisonment and/or an unlimited fine; or
- 12 months and/or an unlimited fine on indictment.

Question 50

How can a suspect appeal a refusal to grant bail?

Answer 50

Magistrates’ court
- apply for bail in the second hearing (7 days);

Crown Court
- refused bail in magistrates’ can be reconsidered on application to the Crown Court (one day after the first hearing (requiring a certificate of full argument’)).

Question 51

What is the custody time limits?

Answer 51

1. 56 days for trials in the magistrates’ court of summary only or either-way offences; and
2. 182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court.

Question 52

For how long can a person first be remanded into custody?

Answer 52

No more than eight clear days.

Onwards remand must be made every 28 days until their trial (can be in their absence).

Question 53

In Crown Court cases, what is the function of the Pre-trial Preparation Hearing?

Answer 53

It is the main pre-trial Crown Court hearing.

The date is set at the first hearing in the magistrates’ court.

In advance of the hearing a PTPH form must be filled in in advance of the hearing.

Question 54

What is the structure of a PTPH hearing?

Answer 54

PTPH comprise two stages:
1. Plea stage (arraignment); and
2. Trial preparation.
- sets the 4 stage dates:
i) Trial date;
ii) Prosecution evidence;
iii) Expert evidence; and
iv) witness requirements.

Question 55

When can an application for dismissal be made?

Answer 55

1. only after a defendant is sent by the magistrates’ court for trial to the Crown court;
2. only after the defendant has been served with the evidence relating to the offence; and
3. only before the defendant is arraigned (i.e. the offence is put to D and D pleads guilty or not guilty).

(the application is made to a Crown Court Judge and if the defendant wishes to make an oral application D must give written notice of D’s intention to do so)

Question 56

What is the test for dismissing a charge?

Answer 56

‘The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment…)… if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’

R v Galbraith
a) where there is no evidence that the crime has been committed by the defendant; or
b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

R v Crown Court at Kingston
- [judge] must take into account the whole of the evidence and not view matters in isolation form their context or other evidence.

Question 57

When can a submission of no case to answer be used?

Answer 57

R v Galbraith
1. when there is no evidence;
2. some evidence of ‘tenuous character:
a) evidence ‘taken at its highest’ is insufficient to convict = no case to answer;
b) If the veracity of the evidence is in question = no case to answer should not be accepted.

Question 58

What is the purpose and function of section 78?

Answer 58

Exclusion of unfair evidence:
1. may refuse to allow evidence on which the prosecution relies; and
2. nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

R v Quinn
- Court has the discretion whether to exclude evidence.

The key test:
- 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.
- Must be significant and substantial breaches.

Question 59

When can a section 78 application be made?

Answer 59

1. before the trial;
2. at the commencement of the trial; or
3. just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

Question 60

Under which circumstances can a confession be excluded?

Answer 60

If the confession was obtained through
1. oppression;
2. consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.

Question 61

What is the approach to establish the second limb of the s 76 exclusion of confession test?

Answer 61

R v Barry
1. to identify the thing;
2. The test is objective, taking into account all the circumstances.
3. to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done.

Question 62

What is the function of s 76(4)?

Answer 62

The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence –
a) of any facts discovered as a result of the confession; or
b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

(I.e. evidence found in connection to confession may still be admitted as evidence).

Question 63

What are the two main types of materials that may be disclosed by a prosecutor?

Answer 63

Used material = materials the prosecution seeks to rely upon at trial.
- statements from the prosecution witnesses;
- the defendant’s record of taped interview;
- other documentary exhibits such as plans and diagrams that are relevant to proving the case.

Unused materials = material that is not being relied upon by the prosecution.
- Statements from witnesses that the prosecution is not relying upon at trial to prove its case;
- records of previous convictions of prosecutions witnesses;
- disciplinary findings against police officers.

Question 64

What are the four stages of disclosure?

Answer 64

1. investigation stage - the duty to record and retain material during the investigation;
2. the initial duty of disclosure on the prosecution;
3. defence disclosure; and
4. the continuing duty on the prosecution to keep disclosure under review.

Question 65

What is the time limits for disclosure?

Answer 65

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8..

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:
1. on plea;
2. on venue for trial (for either-way offences);
3. for the purposes of case management;
4. for the purposes of sentencing (including committal for sentence for either-way offences.

Question 66

What is a defence statement contain?

Answer 66

s 6A CPIA 1996
(1) For the purposes of this Part a defence statement is a written statement–

(a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely;
(b) indicating the matters of fact on which he takes issue with the prosecution;
(c) setting out, in the case of each such matter, why he takes issue with the prosecution; and
(d) setting out particulars of matters of fact on which he intends to rely for the purposes of his defence; and
(e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including:
(a) the name, address and date of birth of any witnesses the accused believes is able to give evidence in support of the alibi, or as many o those details as are known to the accused when the statement is given;
(b) any information in the accused’ possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

Question 67

When must a defence statement be filed?

Answer 67

A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court within 28 days of the date when the prosecution complies with its duty of initial disclosure.

Time limit can be extended but only if the application to extend is made to the court.

Not compulsory in the mags court - but if indicated that a defence statement will be served, then must be served within 10 business days after the prosecution complying with the initial duty of disclosure.

Question 68

When must a defendant disclose witnesses

Answer 68

In the defence statement or in a Notice of Intention to Call Defence Witnesses
- within 10 business days in Mags;
- Within 28 business days in CC.

Question 69

What are the consequences of failing to disclose a defence statement?

Answer 69

s 11 CPIA
- the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.

s 6E(2) CPIA
- provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.

Question 70

What is a ‘section 8 application’?

Answer 70

An application served on the prosecution to serve specific documents.

The defendant must have:
- served a defence statement;
- prosecutor must have either provided further disclosure in light of that Defence statement or notified the defendant there is no further disclosure to be made.

The application must include reasons to believe:
1. that the prosecutor has the material; and
2. that it is material that should be disclosed under the CPIA.

(Defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 days to respond in writing to any such application.

Question 71

What is the function of the Turnbull guidelines?

Answer 71

1. The judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, whenever the prosecution case against an accused depends wholly or substantially:
   i) on the correctness of one or more identifications of the accused; and
   ii) the defence alleges the identification to be mistaken.
2. This special Turnbull warning has three key elements.
   i) instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing ones;
   ii) direct the jury to examine the circumstances in which the identification by each witness came to be made;
   ii) remind the jury of any specific weaknesses in the identification evidence.

Question 72

What criteria is used to assess the quality of visual identification evidence?

Answer 72

A - Amount of time under observation
D - Distance
V - Visibility
O - Obstruction
K - Known or seen before
A - Any reason to remember
T - Time lapse
E - Error or material discrepancy

Question 73

What is the composition of personnel involved in a Crown Court trial?

Answer 73

Trials in the Crown Court take place before a judge and a jury, save for a few exceptional occasions (not dealt with in this element) where trials by a judge alone can take place.

1. Circuit judges (referred to as ‘Your Honour’.
2. Recorders (referred to as ‘Your Honour’
3. High Court Judges (referred to as ‘My Lord, My Lady’).

Question 74

What is the 16 part Crown Court procedure?

Answer 74

1. Legal arguments;
2. Jury selection and swearing in the jury;
3. Judge’s preliminary instructions to the jury;
4. Prosecution opening speech;
5. defence identify matters in issue;
6. Prosecution evidence;
7. Conclusion of the prosecution case;
8. Submission of no case to answer;
9. Right to give evidence & adverse inferences;
10. Defence opening speech;
11. Defence evidence;
12. Legal discussions;
13. Closing speeches;
14. judge’s summing up;
15. Jury baliffs sworn & jury retire;
16. Verdict.

Question 75

What is the function of s 98 CJA 2003?

Answer 75

Bad character evidence of:
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 76

What can be submitted as bad character evidence?

Answer 76

1. Previous convictions in the UK or foreign court;
2. Cautions;
3. Acquittals;
4. Agreed fats that amount to reprehensible behaviour;
5. Witness evidence of a reputation for reprehensible behaviour.

Question 77

What is conduct that falls outside s 98?

Answer 77

(a) Has to do with the alleged facts of the offence with which the defendant is charged; or
(b) Is committed in connection with the investigation or prosecution of that offence.

Question 78

What are the seven gateways that bad character evidence can be admissible?

Answer 78

A. Agreement (tacit agreement is enough)
B. Blurts it out
C. Context (leave is required)
D. Done it before (leave is required)
E. E did it (leave required)
F. False impression (leave required)
G. Gets at the witness. (leave is required)

Question 79

What case established the position of propensity to commit offences?

Answer 79

R v Hanson
- Does the defendant’s history establish a propensity to commit offences of the kind charged?
- more likely that the defendant committed the offence charged?
- Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them?
- In any event, would proceedings be unfair if the evidence were to be admitted?

• No minimum number of previous convictions.
• strength of the evidence is material in the consideration.

Question 80

Under which circumstances can bad character evidence be excluded from proceedings?

Answer 80

s 101(3)
- ‘adverse effect on the fairness of the proceedings that the court ought not to admit it.’

s 101(1)(d) and 103(3) CJA 2003
- exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that, by reason of the time that has elapsed.

s 107 CJA 2003
- stop the case where it is satisfied at any time after the close of the case for the prosecution that bad character evidence has been contaminated.

s 110 CJA 2003
- court must give reasons in open court for any ruling it makes on the issue of bad character.

Question 81

What is the procedure to prove convictions?

Answer 81

The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person.

The burden can be discharged by showing on the balance of probabilities that that person did not commit the offence.

Question 82

What are the procedural requirements of adducing bad character evidence?

Answer 82

Notice:
- non-defendant bad character evidence make an application under rule 21.3; or
- defendant bad character, give notice under rule 21.4.

Time limits
- Mag = 20 business days after the defendant pleads not guilty.
- CC = Not more than 10 business days after the defendant pleads not guilty.
- Co-defendants = as soon as practicable and not more than 10 business days after the prosecutor discloses the material on which the notice is based.

Response:
- Not more than 10 business days after the service of the notice.

Question 83

What are special measures that can be used to assist in witness evidence?

Answer 83

• The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
• Live TV link (where the witness sits in a room away from the courtroom) (s.24)
• Giving evidence in private (public gallery cleared) (s.25)
• Removing wigs and gowns by barristers and judges (s.26)
• Video recording of evidence in chief (s.27)
• Pre-recording cross-examination and re-examination (s.28 – partially in force)
• Questioning of a witness through an intermediary (s.29)
• Aids to communication (s.30)

Question 84

Who is eligible for special measures in witness testimony?

Answer 84

• All witnesses aged under 18 at the time of trial (or video recording) are automatically
  eligible (s.16 YJCEA).
• Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA).
• Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA).
• All adult complainants of sexual offences (s.17 YJCEA).
• All adult complainants in certain offences under the Modern Slavery Act 2015
  (including forced labour and human trafficking).
• All witnesses in a case involving a ‘relevant offence’, namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).
• Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2)
• Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992)
• Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38)
• Restricting the reporting of witnesses’ identity (YJCEA s.46)

Question 85

What are the two conditions for hearsay evidence to be submitted?

Answer 85

1. Does the evidence fall within the definition of hearsay evidence? If the answer to this question is ‘yes’, then it is prima facie inadmissible.
2. Does it fall within one of the exceptions to the general exclusionary rule?

Question 86

What is the s 114(1) CJA 2003 on hearsay evidence?

Answer 86

It is one of the exceptions where hearsay evidence is allowed.

It allows:
a) any provision of this Chapter or any other statutory provision makes it admissible;
b) any rule of law preserved by s 118 makes it admissible;
c) all parties to the proceedings agree to it being admissible; or
d) the court is satisfied that it is in the interest of justice for it to be admissible.

Question 87

What is the test for hearsay?

Answer 87

R v Twist
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 = hearsay;
- If no = not hearsay.

Question 88

When can hearsay evidence be admissible?

Answer 88

1. if the witness is unavailable;
2. business document; or
3. interest of justice to admit it.

Question 89

What are the conditions for hearsay evidence to be submitted without the witness?

Answer 89

if:
1. dead;
2. unfit;
3. outside the UK;
4. cannot be found; or
5. due to fear and with the court’s leave.

Question 90

When can fear cause hearsay evidence to be admissible?

Answer 90

No requirement that the fear that the witness feels should have been caused by the defendant.

Sellick
- If intimidation of a witness by a defendant is clearly made, then infringement of right to fair trial is not infringed by inability to cross-examine the witness.

Question 91

What are the common law exceptions to the treatment of hearsay evidence?

Answer 91

1. Public information;
2. Evidence of reputation;
3. Res gestae (emotional witness, phone call);
4. Confessions;
5. Statements in furtherance of common enterprise;
6. body of expertise.

Question 92

What must the notice to use hearsay evidence contain and when must it be served?

Answer 92

Content:
1. Identify the hearsay evidence;
2. Set out the facts relied on that make the evidence admissible;
3. Explain how those facts will be proved if they are disputed;
4. Explain why the evidence is admissible.

Time limits:
1. 20 business days in Mags;
2. 10 business days in CC.

Question 93

What must be in a notice to oppose hearsay evidence and when must it be served?

Answer 93

Must serve an applicaiton on the court and every other party as soon as reasonably practicable and in any event not more than 10 business days after:
1. Service of the notice to introduce the evidence;
2. Service of evidence objected to, if that is evidence for which no notice is required; or
3. the defendant pleads not guilty.