Criminal Law and Practice Flashcards
A client works as a tattoo and piercing artist. He has been arrested after he was found by police in his studio performing an ear removal procedure without anaesthetic on a customer aged 20 years. The customer had requested the procedure be carried out to help them achieve their aim of replicating the appearance of a snake. The client advises that he has had no medical training to carry out this procedure, but he felt competent to carry out the procedure safely based on his experience as a tattoo and piercing artist. The customer signed the client’s usual practice consent form to have the procedure carried out and paid the client in full in advance.
Does the client have a defence to committing a statutory assault?
No, because even though he has the consent of the customer, the customer cannot legally consent to this kind of procedure being carried out for cosmetic reasons by a tattoo artist.
Option D is correct. It has been held that valid consent cannot lawfully be given by adults to acts of body modification such as tongue splitting, ear removal and nipple excision performed without anaesthetic by a tattooist with no medical training.
A man had parked his vehicle outside his house. From his window the man observed a civil enforcement officer placing a parking ticket on the vehicle. He left his house and argued with the civil enforcement officer about the parking ticket. The situation escalated and the man struck the enforcement officer, fracturing his nose. The man was arrested and maintained that he was acting in self-defence. The man was convicted of assault occasioning actual bodily harm following a trial in the magistrates’ court. The district judge heard evidence from the man and the civil enforcement officer at the magistrates’ court trial. Following conviction, the district judge imposed a six-month prison sentence on the man but suspended that sentence of imprisonment. Two weeks after the man was sentenced, he was approached by a neighbour who said he had seen the incident clearly from his front garden. The neighbour said that he had observed the civil enforcement officer behaving aggressively and the man striking out to prevent the civil enforcement officer attacking him. The man appeals against his conviction.
Can the man call evidence from the neighbour on an appeal to the Crown Court?
A-No, because an appeal against conviction to the Crown Court following conviction in the magistrates’ court is confined to legal argument.
B-No, because this is fresh evidence that was not heard during the magistrates’ court trial.
C-No, because the man had to file notice of appeal against conviction within 10 days from the date of sentence with the magistrates’ court and the CPS.
D-Yes, because the man can argue the fresh evidence appears to be credible, would have been admissible at the trial and there is a reasonable explanation for the failure to adduce that evidence at the magistrates’ court trial.
E-Yes, because an appeal against conviction in the Crown Court is a full rehearing of the case at which new witnesses may be called.
Option E is correct. A defendant convicted following a trial in the magistrates’ court can appeal against conviction to the Crown Court. The appeal against conviction in the Crown Court is a full rehearing of the case. The prosecution and appellant will call all the witnesses whose evidence they seek to rely on, including new witnesses who did not give evidence in the magistrates’ court, such as the neighbour.
Option A is wrong because the appeal in the Crown Court following conviction in the magistrates’ court is in effect another trial. Appeals to the High Court by way of case stated from a decision of the magistrates’ court are confined to legal argument based on the agreed facts set out in the statement of case and no evidence is given by witnesses. The man is appealing against his conviction to the Crown Court so this type of High Court appeal is not relevant on the facts.
Option B is wrong because on appeal against conviction in the Crown Court new witnesses may be called and new or different points of law from those taken in the magistrates’ court trial may be relied on.
Option C is wrong because the time limit to file a notice of appeal against conviction from the magistrates’ court to the Crown Court is 15 business days from the date of sentence. Even if a defendant files the notice outside this period a Crown Court Judge has discretion to extend the time limit.
Option D is wrong because no permission is required (and therefore no argument needed) prior to calling fresh evidence at an appeal in the Crown Court that was not called during the magistrates’ court trial.
A woman’s handbag is stolen in a supermarket. An eye-witness claims to have seen the thief running away from the supermarket, carrying the stolen handbag. The eye-witness states that he recognised the thief, as their children used to be in the same class at school. He names the suspect as the thief.
The suspect is later arrested for the theft. He accepts being at the supermarket at the relevant time but denies he was the person seen running away with the woman’s handbag and claims the witness is mistaken. The suspect states that his child left the school five years ago and he disputes knowing the eye-witness.
Which of the following best describes the need to carry out an identification procedure in these circumstances?
A-The police need to carry out an identification procedure as the suspect denies stealing the handbag.
B-The police need to carry out an identification procedure as the suspect denies knowing the eye-witness.
C-The police do not need to carry out an identification procedure as the suspect accepts he was present at the scene of the theft.
D-The police do not need to carry out an identification procedure as the suspect is known to the eye-witness.
E-The police do not need to carry out an identification procedure as the eye-witness can identify him during the course of the trial.
Option B is correct. The circumstances in which an identification procedure should be held are set out in paragraph 3.12 of Code D to the Police and Criminal Evidence Act 1984. This states that an identification procedure must be carried out where an eye-witness purports to identify a suspect. There are exceptions to this rule, which include where “such a procedure would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence, for example […] when it is not disputed that the suspect is already known to the eye-witness who claims to have recognised them when seeing them commit the crime.” However, in this scenario the suspect states that he does not know the eye-witness. He is therefore disputing that he is known to the eye-witness, and an identification procedure should be held to test the accuracy of the eye-witness’s identification. This is similar to the situation in R v Harris [2003] EWCA Crim 174.
Option A is wrong. The police should carry out an identification procedure, as explained above. However, this is not because the suspect denies he is the thief. The police do not need to hold an identification procedure in every case where the suspect denies guilt, only those where an eye-witness, as in this case, purports to identify the suspect (or states they have the ability to identify a suspect or where there is a reasonable chance that they will be able to do so) and the suspect claims the witness is mistaken.
Option C is wrong. Although the suspect accepts that he was at the supermarket, he denies that he was the thief. His account therefore contradicts what the eye-witness says and an identification procedure should be carried out to test the accuracy of the eye-witness’s identification.
Option D is wrong. Although the eye-witnesses purports to recognise the suspect, the suspect denies that he is known to the eye-witness.
Option E is wrong. Code D of PACE makes it clear that identification procedures should be carried out by the police during their investigation into the offence. An identification should not be carried out during the course of the trial (sometimes referred to as a dock identification).
A man makes his first appearance before the magistrates’ court charged with assault occasioning actual bodily harm. It is clear from the account that he gives to his solicitor that he may be able to raise the defence of self-defence. The man pleads not guilty and his case is listed for trial at the magistrates’ court in six weeks’ time. Subsequently, the man, though maintaining the truthfulness of his version of events, tells his solicitor that he wants to change his plea to guilty because he wants to get the case out of the way without the need to wait for trial.
Which of the following statements best describes what the solicitor should do next?
A-The solicitor should attempt to dissuade the man from pleading guilty, but if the man insists, the solicitor should decline to act.
B-The solicitor should attempt to dissuade the man from pleading guilty, but if the man insists, the solicitor may continue to act but should make it clear to the man that he would not be able to say in mitigation that he acted in self-defence.
C-The solicitor should attempt to dissuade the man from pleading guilty so that the prosecution can be put to proof, but should make it clear to the man that if he continues to plead not guilty, he would not be able to do anything to positively assert his innocence at trial.
D-The solicitor should attempt to dissuade the man from pleading guilty, but if the man insists, the solicitor may continue to act but should make it clear to the man that he would be under a duty to say in mitigation that the man acted in self-defence.
E-The solicitor should attempt to dissuade the man from pleading guilty, but if the man insists, the solicitor may continue to act and should put forward a guilty plea on the basis that the man acted in self-defence.
Option B is correct. The solicitor should attempt to dissuade the man from pleading guilty for convenience but may continue to represent him if he insists on doing so. However, when giving the plea in mitigation, the solicitor will not be able to rely on any fact that constitutes a defence.
Option A is wrong. The solicitor should attempt to dissuade the man from pleading guilty for convenience but may continue to represent him if he insists on doing so.
Option C is wrong. If the solicitor succeeds in dissuading the man from pleading guilty, he can call the man and any defence witnesses to give evidence. If the man maintains the truthfulness of his defence the solicitor will not risk breaching his overriding duty not to mislead the court.
Option D is wrong (see option B). If the man pleads guilty, he cannot then put forward a version of events in mitigation that would constitute a defence.
Option E is wrong for the same reason as option D. The man cannot put forward a version of events in mitigation that would constitute a defence. A basis of plea would only be appropriate if the man accepted that he had committed the offence but disputed the factual basis of how the offence was committed.
A man is kicking a football against his neighbour’s fence. On one shot he kicks the football and the football breaks the fence. The man gets on well with his neighbour and the man says he thought that there was no chance of breaking the fence. The fence can be fixed at low cost.
Is the man guilty of simple criminal damage?
A-Yes, because the reasonable person would have foreseen a risk of damage in the circumstances.
B-No, because he has a lawful excuse. At the time he kicked the football, a reasonable person would have believed that the neighbour would have consented to the damage as he gets on well with his neighbour.
C-Yes, because he foresaw a risk of damage in the circumstances.
D-No, because the fence can be fixed at low cost and this does not amount to damage.
E-No, because he did not foresee a risk of damage in the circumstances.
Option E is correct answer this is in accordance with the test for recklessness and the fact pattern. There is no suggestion the man intended the damage. Whilst simple criminal damage can be committed through recklessness, the relevant test for recklessness is whether this defendant foresaw a risk, went on to take it and the risk was unjustified (the subjective Cunningham test). On the facts he did not foresee a risk, he thought that there was “no chance of breaking the fence” and so he is not guilty of simple criminal damage.
Option A is wrong because the test for recklessness is not an objective test (see the subjective Cunningham test above).
Option B is not the best answer, because lawful excuse under s.5(2a) Criminal Damage Act 1971 is subjective rather than objective. It refers to the man’s actual belief rather than a reasonable person’s belief.
Option C is wrong because although the option sets out the relevant test being the subjective Cunningham test for recklessness, on the facts, the man did not foresee a risk as he thought there was “no chance of breaking the fence”.
Option D is wrong because the low cost to fix the fence can amount to damage (Hardman v Chief Constable of Avon and Somerset Constabulary).
Quick Q:
A solicitor is acting for a new client charged with theft of items from a car. She is the sole carer for her two young children and has a number of recent convictions for similar dishonesty offences. She has served a custodial sentence for such offending in the past. She intends to plead not guilty and is claiming the police conducted an unlawful search of her home to recover the items they believe were taken from the car.
Which of the following statements best describes whether it will be in the interests of justice for the client to receive publicly funded legal representation at court?
A substantial question of law will need to be determined, which will also require expert cross-examination. Moreover, it is likely the client will lose her liberty if she is convicted.
Option D is correct and illustrates how a number of factors under the ‘interests of justice’ test may be relied on in any given case. The client will be arguing that the admissibility of evidence obtained from an unlawful search is disallowed, which will involve a substantial question of law. In turn this will require a trained advocate to cross-examine the police officers over the conduct of the search. If convicted, the client is also likely to lose her liberty given her record of recent previous convictions for similar offending and the fact that she has served a custodial sentence in the past.
Quick Q:
A boyfriend and girlfriend are fighting on a beach. Both have drunk a lot of alcohol. As she is annoyed with him, the girlfriend slaps her boyfriend on the face, and he loses his balance and falls backward. Whilst doing so, he strikes his head on some rocks in the sand and dies of his head injuries several minutes later.
Will the girlfriend be guilty of either murder or manslaughter?
The girlfriend will be guilty of unlawful act manslaughter because she intended to do a dangerous act which caused death.
Option A is correct. In slapping her boyfriend, she has committed an unlawful act (the actus reus and mens rea of an assault is present), which is dangerous, and it caused death. Her actions satisfy the test for unlawful act manslaughter (also known as constructive manslaughter).
A train conductor witnessed a man stealing a laptop from one of the tables during a train journey from Manchester to London. The train conductor noticed that the man had a scar on his right cheek and that the man placed the laptop in a red sports bag before walking away with it. The man is later charged with theft of the laptop. The conductor attends the trial to give evidence on behalf of the prosecution.
Which of the following statements best describes the questions that can be asked of the conductor, by the prosecutor, at trial?
A-The prosecutor can ask the conductor any question he feels will draw out the existence of the facial scar and red sports bag.
B-The prosecutor can ask the conductor outright whether the suspect had a facial scar.
C-The prosecutor can ask the conductor to describe exactly what he saw during the alleged incident.
D-The prosecutor can ask the conductor whether the suspect used a red sports bag if he forgets to mention it.
E-The prosecutor can ask the conductor whether the facial scar was on the suspect’s right cheek.
Check leading vs non leading questions…..
Option C is correct because as the conductor is being called by the prosecution his questioning by the prosecutor will be his examination in chief therefore, he can be asked an open question allowing him to tell his story.
Option A is wrong because the prosecutor is not able to ask any question they like of the conductor. Leading questions are not permitted as the conductor is the prosecution’s witness.
Options B, D and E are wrong as they are all examples of leading questions which are not permitted.
One evening the defendant jumps over the fence into his neighbour’s garden. She has given him permission in the past to borrow tools from her shed, which he knows she keeps unlocked. He opens the shed door and reaches in with his body and takes a bike, which is just beside the door, planning to sell it. He tries to throw the bike over the fence but injures his back doing so and has to leave the bike behind.
Have the actus reus elements of burglary been committed?
A-No, because the shed is not a building.
B-No, because the defendant did not enter the shed.
C-No, because the defendant had the permission of his neighbour to enter the shed.
D-Yes, because the defendant entered the shed as a trespasser and stole the bike.
E-Yes, because the defendant entered the shed as a trespasser and attempted to steal the bike.
Option D is correct. The actus reus elements are complete in that there was an entry into a building as a trespasser and the bike was stolen.
Option A is wrong. A shed is a building as it is a structure of a significant size with some degree of permanence.
Option B is wrong. Whilst the defendant did not step into the shed, he reached his body into it to get the bike and this would amount to an effective entry.
Option C is wrong. The defendant exceeded the permission given to him by his neighbour and is therefore trespassing.
Option E is wrong. It does not matter that the bike was left behind. The defendant appropriated property belonging to another when he took the bike with the dishonest intention to permanently deprive his neighbour of it. The offence of theft is therefore complete and so it is not an attempted theft.
A solicitor is acting for a defendant on a charge of burglary. The defendant enters a guilty plea at her first appearance before the magistrates. The prosecutor wrongly tells the court that the defendant has no previous convictions. The defendant has told the solicitor that she was in fact convicted of an offence of theft six months ago and that she was given a conditional discharge.
Which of the following best describes what the solicitor should now do in relation to disclosure of the previous conviction?
A-The solicitor should not disclose the conviction but present a plea in mitigation on the defendant’s behalf, emphasising she is generally of good character.
B-The solicitor should only disclose the existence of the previous conviction to the court if the defendant gives her express authority to do so.
C-The solicitor must disclose the theft conviction to the magistrates to avoid misleading the court.
D-The solicitor must disclose the conviction to the court as it is relevant to the seriousness of the current offence.
E-The solicitor cannot disclose the conviction and must stop acting for the defendant.
Option B is correct. The information about the defendant’s previous conviction is confidential. Although you have an overriding duty not to mislead the court, you still cannot disclose this information without your client’s express authority.
Option A is wrong because the solicitor cannot take advantage of the error by stressing the defendant is of good character – that would breach the solicitor’s overriding duty not to mislead the court.
Options C and D are wrong because the solicitor cannot disclose the conviction without the defendant’s authority. Instead, the solicitor would have to withdraw from acting (without telling the court why) as it would be very difficult to present a plea in mitigation without making reference to the defendant’s character.
Option E is wrong as the solicitor can disclose the conviction if the client gives her authority to do so. The solicitor would only be required to cease acting if the defendant does not provide authority for the previous conviction to be disclosed.
- If asked if they have a previous conviction, just say that’s a matter for the prosecution (as they’re the one that made the mistake initially)
A man books a table at a restaurant using their online booking system. The website suggests that, if it is the birthday of one of those attending, each person attending will receive a free glass of prosecco. The man books the table, ticking a box to say that it will be his birthday on the day of the booking, even though his birthday was a few weeks ago. He is of the opinion that this is morally fine, because he would have been entitled to the prosecco just a few weeks before, when the offer was also running. He attends the restaurant on the day of the booking, has a meal, and is given free prosecco.
Which of the following best describes whether the man is liable for fraud by false representation?
A-He has not committed fraud by false representation, because the restaurant would have given him the prosecco a few weeks before, if he had attended on the date of his birthday, and so there has been no loss to the restaurant
B-He has committed fraud by false representation, because ticking the box amounted to an implied assertion that his birthday was on the day that he was due to attend, and that assertion was incorrect.
C-He has not committed fraud by false representation because he did not think that he was being dishonest, nor did he think that others would consider his behaviour to be dishonest.
D-He has committed fraud by false representation at the point that he submitted the online booking, even before he was given the prosecco.
E-He has not committed fraud by false representation because he has not verbally confirmed to the restaurant that it was his birthday.
Option D is correct. The elements of fraud by false representation – the making of a false representation, knowing that it is or might be false, dishonestly and with the intention to make a gain or cause a loss (or expose another to a risk of loss) - are made out on the facts. Note that the elements of fraud by false representation do not require an actual gain or loss to be made, but rather an intention to make a gain or cause another a loss, which the man did intend here.
Option A is wrong because the form specifically required him to confirm that his birthday was that day. The man therefore intended to make a loss to the restaurant, as they would not have given him the prosecco had he not ticked the box.
Option B is not the best answer because in ticking a box which specified a fact, he was making an express assertion that this fact was true.
Option C is wrong because this is not the test for dishonesty. It is irrelevant whether he personally thought what he was doing would be considered dishonest by others.
Option E is wrong because there is no requirement for a representation to be made verbally, as it can be communicated in a number of different ways, including by posting on a website.
A defendant, aged 35 years old, is involved in a fight outside a pub. He has been drinking heavily all evening and then loses his temper with the victim and punches him, causing the victim a broken nose. The victim suffers from anxiety because of the assault and loses money as he takes time off work. Fights outside pubs are unusual in the area where this event takes place. The defendant is convicted of assault occasioning actual bodily harm. The defendant has a previous conviction for shoplifting from when he was 18 years old.
Which of the following may be relevant in relation to seriousness, when the court is sentencing this defendant?
A-Only the physical harm caused to the victim.
B-The prevalence of this type of crime in the area as it is important that rates do not increase.
C-The defendant’s previous conviction for shoplifting.
D-The defendant’s age.
E-The fact that the defendant was under the influence of drink.
Option E is correct. The sentencing guidelines on ‘seriousness’ list being under the influence of drink as something the court may consider as an aggravating factor. This is relevant on the facts here as the defendant is said to have been drinking heavily all evening.
Option A is wrong because under the Sentencing Code 2020, the court may consider financial loss and psychological distress as types of harm that increase the seriousness of the offence, not just the physical harm.
Option B is wrong because this type of offence is not prevalent in the area and so there is no basis for the court to treat it as more serious than it otherwise would do so.
Option C is wrong as his previous conviction is from a long time ago and for a very different offence, so this is not a relevant aggravating factor on these facts.
Option D is wrong as the defendant is not particularly young or old, so this is not a relevant mitigating factor on these facts.
Quick Q:
A man confesses to the crime with which he is subsequently charged during his interview under caution with the police. At trial the man will claim that the only reason he confessed was because the police repeatedly asked him the same questions over the course of a lengthy interview, disregarding his denials. During his interview he received no refreshments or breaks, and was not offered access to a solicitor at any time whilst at the police station. The prosecution do not deny that the confession was obtained in the manner described.
Will the prosecution be allowed to adduce evidence of this confession at the accused’s trial?
No, because the Court must exclude the confession if the prosecution cannot prove it was not obtained in circumstances existing at the time that rendered it unreliable.
Option D is correct as where it is alleged that the confession was obtained in such a way as to render it unreliable, the Court must exclude it unless the prosecution proves beyond a reasonable doubt that it was not obtained in such circumstances. Here, the circumstances are likely to render it unreliable and in the absence of any challenge by the prosecution, it must be excluded (s76(2)(b) PACE 1984).
Quick Q:
The defendant is arrested for Robbery whilst standing outside of a bank. He is wearing a balaclava and has an imitation firearm in his pocket.
Which of the following statements correctly identifies the defendant’s criminal liability for attempted robbery?
The actus reus is incomplete because the defendant has not entered the bank. For this reason, the defendant has not committed attempted robbery.
Option B is correct. A defendant must go beyond acts which are merely preparatory in the commission of an offence. This can be explained by saying that the defendant must have crossed the point of no return in regard to committing the offence. Here the defendant has not entered the bank, stolen money or made threats as he is still outside. The defendant will not be guilty of attempted robbery.
A man has been arrested and taken to the police station. He is given his rights by the custody officer and requests legal advice. He changes his mind when informed by the investigating officer that this will only delay things as they are ready to interview him. The man confirms his change of mind by signing an entry to this effect in the custody record. The custody officer authorises the interview to be conducted without legal representation.
Can the interview now proceed?
A-Yes, because the right to legal advice is an ongoing right and the suspect can change his mind at any stage of detention.
B-No, because an officer of inspector rank or above has not given written authority.
C-Yes, because the custody officer has authorised this and made the required record of the authorisation.
D-No, because written authority can only be given by an officer not below the rank of superintendent.
E-No, because once the suspect has requested legal advice, the interview cannot proceed without the solicitor’s attendance.
Option B is correct as written authority for the interview to proceed can only be given by an officer not below the rank of inspector and here is it given by the custody officer.
Options A is wrong as the decision to proceed without a solicitor present has not been properly authorised. (Furthermore, the suspect must also confirm their reason for changing their mind and confirm in writing their wish to proceed with the interview. It is not sufficiently simply for the suspect to change their mind.)
Option C is wrong as authorisation can only be given by an officer of the rank of inspector or above.
Option D is wrong as an officer of the rank of inspector or above can also provide authorisation for the interview.
Option E is also wrong as the suspect can change their mind. An officer must still enquire and record the reasons for this and have the suspect confirm in writing their willingness to proceed.
