OUP Questions Flashcards
A defendant has been convicted of two offences, one robbery and one possession of a Class A drug. The defendant was arrested at the scene of the robbery and the drugs were found in his possession, during a search of his person, at the police station. He is now due to be sentenced for both offences.
Which statement best explains whether the two sentences will run consecutively or concurrently to each other?
The court should impose consecutive sentences as the offences are not part of the same set of facts.
When sentencing for more than a single offence, the court has the option to pass concurrent or consecutive sentences. There is no inflexible rule governing whether sentences should be structured as concurrent or consecutive components. The overriding principle is that the overall sentence must be just and proportionate. Whichever option is taken, the Sentencing Council’s Totality Guideline provides that the court should pass a total sentence which reflects all the offending behaviour before it, rather than simply adding together the notional single sentences. Consecutive sentences will ordinarily be appropriate, however, where offences arise out of unrelated facts or incidents, which is the case here.
Eight months ago, a woman was convicted of ABH. She was sentenced to five months’ custody, suspended for a period of 12 months. A requirement to complete 120 hours of unpaid work was attached to the suspended sentence order and the woman has completed that requirement. The woman has now been convicted, in the magistrates’ court of a new offence of theft.
Can the court activate the sentence of imprisonment?
Yes, because she has committed an offence during the operational period of the suspended sentence order.
Section 288 of the Sentencing Act 2020 defines the operational period of the order as the time for which the sentence is ‘suspended’. Where a defendant has committed an offence during the operational period, the Sentencing Council’s Guideline ‘Breach of a Suspended Sentence Order’ states that the court must activate the custodial sentence unless it would be unjust in all the circumstances to do so. The predominant factor in determining whether activation is unjust relates to the level of compliance with the suspended sentence order, but the court is not precluded from activating the sentence because one of the requirements has been completed. The court will also take into account the facts/nature of any new offence, but it is not precluded from activating the sentence because the new offence is not similar, nor must it be imprisonable.
A man has pleaded guilty to an offence of assault. The man was part of a gang which targeted a vulnerable woman and surrounded her, pushing her over in the street. Another member of the gang filmed the attack on his mobile phone and shared it on social media. The man has a learning difficulty and played a minor role in the attack.
Which statement most accurately reflects how the court will consider the seriousness of the offence committed by the man?
The filming of the incident caused further harm to the victim and will make the offence more serious.
There are several factors here which may affect the seriousness of the offence. Section 63 of the Sentencing Act 2020 provides that when considering seriousness, the court must consider the culpability of the defendant and the harm caused. The sentencing guideline ‘Overarching Principles: Seriousness’ identifies factors which affect both culpability and harm. The fact that the victim of the assault was filmed would be classed as additional degradation, which is an aggravating feature and increases the level of harm caused and makes the matter more serious. The fact that the defendant was part of a gang is an aggravating feature which makes him more culpable and increases the seriousness of the offence but it is not a mitigating factor. The defendant’s learning disability and the minor role he played are both mitigating factors and could certainly be relied upon to reduce his culpability and the overall seriousness of the offence.
A woman has stolen £8,000 from her employer. The woman says she always intended to pay the money back and, after she was caught, she did return all the money. The woman has a previous conviction for a similar offence which happened three years beforehand and she has completed the community sentence which was imposed for that offence. The woman entered a guilty plea on the first day of her trial.
Which statement is correct when it comes assessing the seriousness of the offence for the purpose of sentencing?
The fact that the victim was the woman’s employer makes the offence more serious.
There are several factors here which may affect the seriousness of the offence. Section 63 of the Sentencing Act 2020 provides that when considering seriousness, the court must consider the culpability of the defendant and the harm caused. The sentencing guideline ‘Overarching Principles: Seriousness’ identifies factors which affect both culpability and harm. The fact that the defendant stole from her employer means that she abused a position of trust; this is an aggravating feature which makes her more culpable and which means the offence is more serious. The fact that she has returned the money is relevant as the harm to the victim—the financial loss—is reduced.
A woman is arrested for an offence of theft. The entire incident is clearly captured on CCTV and the evidence is overwhelming. The woman answers no comment to the questions in the police interview. She has a previous conviction for a very similar offence which was committed two years beforehand. The woman pleads guilty at her first appearance at the magistrates’ court and the matter is adjourned for sentence.
Which of the following statements best describes the reduction in sentence that the woman is entitled to for her guilty plea?
She will be entitled to the maximum one-third reduction as she has pleaded guilty at the first stage of proceedings.
Section 73 of the Sentencing Act 2020 outlines the relevant reduction in sentence for a guilty plea. The Sentencing Council ‘Reduction in Sentence for a Guilty Plea Definitive Guideline’ provides that the maximum credit, which is a reduction in sentence of one-third, is usually available for a guilty plea where a plea is entered ‘at the first stage of proceedings’ and the first magistrates’ court appearance is included in that definition. The guideline confirms that plea is a separate matter from remorse and other aspects of mitigation, and is separate from any reduction which may be appropriate to reflect assistance to the prosecuting or enforcement authorities, so the fact that she did not admitted the offence in the interview is not necessary to receive full credit. The previous convictions of the defendant are not relevant and neither is the strength of the evidence as the guideline states that the benefit applies regardless of the evidence against the offender. The purpose of the reduction is to encourage timely guilty pleas thus saving the need for a trial
A woman is charged with robbery and is bailed with a condition of a curfew for seven hours each night. She spends 21 days on bail before she is arrested again for a further robbery and remanded in custody. She spends 90 days on remand before she is convicted of two offences of robbery and sentenced to three years’ imprisonment.
Which statement best explains how her sentence will be calculated?
She will serve half of the sentence in custody and half in the community under supervision. Her 90 days spent on remand will be taken off the sentence.
Prisoners are entitled to have time subtracted from their sentence to account for time already served on remand. Section 240ZA of the Criminal Justice Act 2003 provides that the time should be subtracted day for day unless the court feels it is just not to do so. Prisoners who have been remanded on conditional bail on an electronically monitored curfew, for more than nine hours per day, may also have a half-day subtracted from the sentence for every night spent on curfew in accordance with s325 of the Sentencing Act 2020. That reduction does not apply here as the curfew was only seven hours per day. All prisoners (except those serving life sentences, sentences of imprisonment for public protection and extended sentences) are entitled to be released halfway through their sentences. All prisoners are then on licence or a period of supervision by the Probation Service.
A woman is charged with three offences of common assault which is a summary offence. She enters guilty pleas to all three offences at her first appearance at the magistrates’ court and is now due to be sentenced.
Which statement best describes the magistrates’ powers in relation to her sentence?
The magistrates have the power to sentence the woman to up to six months’ imprisonment in total.
he sentencing powers of magistrates’ courts are limited to a maximum of six months’ imprisonment for any number of summary-only offences. When dealing with either-way offences, the maximum total custodial sentence is 12 months, but that is not the case here. The magistrates may therefore only impose a maximum of six months’ imprisonment. There is no power to commit summary-only offences to the Crown Court, that power applies only to either-way offences under s18 of the Sentencing Act 2020.
A man is standing trial for theft of a scooter. His barrister believes that because the prosecution failed to introduce evidence establishing to whom the property belonged, he can make a successful submission of no case to answer.
When can a submission of no case to answer be made?
A submission of no case to answer is made at the end of the prosecution’s case and the prosecution bears an evidential burden.
A submission of no case to answer is made at the end of the prosecution case. The defence will make a submission if either the prosecution has failed to present evidence on an essential element of the offence charged (as in this scenario), or if any of the prosecution’s evidence is so unreliable that no reasonable tribunal could convict (eg a key witness admits to being extremely intoxicated). The prosecution bears an evidential burden; the test the judge will consider comes from Galbraith [1981] 2 All ER 1060, ‘taking the prosecution’s case at its highest, could a properly directed jury safely convict the defendant’.
A man is due to be tried in the magistrates’ court for theft of a bicycle. His defence is one of alibi as he was at a friend’s house when the offence was committed, and his friend is the only defence witness. The man informs his solicitor one week before the trial date that his friend has to travel for work on the day of trial and cannot attend.
What should the solicitor do in response to receiving this information?
The solicitor should inform the court and the prosecution that the trial date may have to be moved, but should take all reasonable steps to ensure that the man’s friend attends the trial as scheduled.
Rule 3.10 of the Criminal Procedure Rules provides that each party must take every reasonable step to ensure that the party’s witnesses will attend when they are needed and also that the court and other parties are informed of anything that may affect the date of the trial.
A man is charged with common assault and pleads not guilty in the magistrates’ court. He tells his solicitor that his defence is one of alibi. He asks his solicitor to trace and interview the alibi witness, but not to reveal her identity to the prosecution until just before the trial date.
What is the best advice for the solicitor to give the man?
The solicitor is required to indicate which defence witnesses are expected to give evidence in person and to identify the real issues in the case.
A defence statement is voluntary in summary cases (s6 Criminal Procedure and Investigations Act 1996).
A man is charged with burglary. His solicitor advises him that the evidence against him is very weak and that he has a good chance of being acquitted. The man admits to his solicitor that he committed the burglary but he asks his solicitor if he should plead not guilty. He also asks if he should give evidence and deny that he was present at the scene of the burglary.
What should the solicitor advise regarding the plea and the man giving evidence?
The man may plead not guilty but must not put forward a positive defence.
Rule 1.4 of the both the SRA Codes of Conduct for individuals and firms provides that a solicitor must not mislead or attempt to mislead clients, the court or others, either by their own acts or omissions or allowing or being complicit in the acts or omissions of others (including the client). There are several common scenarios in criminal cases which engage this rule. Where a client admits their guilt to their solicitor during the proceedings, the client should be advised concerning entering a guilty plea and the credit which they would receive for entering a timely guilty plea. The decision on plea is, ultimately, the client’s decision. A solicitor may properly continue to act for a client who has admitted their guilt but maintains a not guilty plea only where the defence is putting the prosecution to proof, as the burden of proof rest upon the prosecution, and not putting forward an active defence. This would be an appropriate course of action here if the evidence against the client is weak. The client must not, however, deny the offence in their evidence. It is not simply an issue for another witness who may give false evidence and the defendant’s evidence would also mislead the court should they put forward a positive defence which the solicitor knew to be untrue.
A man is on trial accused of causing criminal damage. The magistrates have just sat through four days of evidence, which included details of the man’s three previous convictions for criminal damage and his disputed police station confession. Before the magistrates retire to consider their verdict, the man’s solicitor will deliver the defence’s closing speech.
Which of the following issues will be excluded from the defence solicitor’s closing speech?
Reference to his opening speech. The defence can only make an opening speech if the trial takes place in the Crown Court..
A man charged with assault by beating makes his first court appearance. The initial details of the prosecution have been served in advance of the hearing and the man’s solicitor is taking his instructions and advising him of the procedure his first court appearance.
The man is unsure of his plea. What will happen at the first hearing? Select the most accurate statement.
If the man enters a not guilty plea, the court will then fix the date for his trial.
The man is charged with a summary-only offence, so the magistrate’s court will want to fix a trial at the first hearing. In setting a firm date at the first hearing for a summary trial, the magistrates court will also expect both the prosecution and the defence to assist in completion of a trial preparation form.
The defendant has pleaded not guilty to assault by beating and a date has been fixed for their trial. The prosecution has just served the unused material schedule.
What are the defence obligations in relation to serving a defence statement in this case?
A defence statement should be served within 14 days following receipt of the unused material schedule.
Assault by beating is a summary only offence. Serving a defence statement is only mandatory for Crown Court trials. Defence statements in the magistrates’ court are voluntary, therefore the defence can choose if they wish to serve a defence statement.
A defendant (18 years of age) fails to attend his trial for the offence of theft in the magistrates’ court. The prosecution applies for the trial to continue in the defendant’s absence. The defence solicitor advises the court that the defendant is aware of the trial hearing and can provide no explanation for his non-attendance.
Which of the following statements most accurately describes whether the trial and any subsequent hearings will take place in the defendant’s absence?
It is likely that the defendant will be tried in his absence and if convicted, his sentence can be passed.
As the defendant has reached 18 years of age, there is a statutory requirement that a summary trial will proceed despite his absence, unless it would be contrary to the interests of justice to do so (see 11(1)(a) of the Magistrates’ Court Act 1980).
As there is no good reason for the defendant’s non-attendance, it is likely that the court would find that it is in the interest of justice to proceed (See Criminal Procedure Rules 24.12).
The defendant’s sentence can also be passed, though the Criminal Procedure Rules 24.11(10(a) requires the court to adjourn for a sentence hearing if it considers imposing a disqualification, or custodial sentence.
