SPA 1 - Criminal Litigation

Question 1

When must an identification procedure be held?

Answer 1

If:
1. A witness has identified or purported to identify a suspect,
2. A witness expresses an ability to identify a suspect, or
3. There is a reasonable change of an eyewitness being able to identify a suspect.

Question 2

What rights does a suspect have re identification procedures?

Answer 2

1. The right to have the procedure explained.
2. The right to have free legal advice with respect to identification procedure or to have a solicitor/friend present at the procedure.

Question 3

Does a suspect need to cooperate with an identification procedure?

Answer 3

No.
But a failure to cooperate could be raised at trial and the identification procedure could still be held covertly.

Question 4

What is the consequence of a suspect changing their appearance before identification procedures?

Answer 4

It may be raised at trial.

Question 5

What are the different types of identification procedure?

Answer 5

1. Video identification
2. Identification parade
3. Group identification
4. Confrontation

Question 6

What happens during video identification?

Answer 6

Moving images of the suspect and at least 8 others are shown to the witness.

The others must be similar in appearance + distinguishing features must be concealed.

Question 7

What happens during an identification parade?

Answer 7

The suspect + at least 8 others who resemble the suspect appear in a line.

Question 8

What happens during group identification?

Answer 8

The witness sees the suspect in an informal group, with or without the suspect’s consent.

Question 9

What happens during confrontation?

Answer 9

One-on-one identification.

The suspect’s solicitor or friend may be present unless it would cause undue delay.

The suspect shouldn’t be restrained at the time of the identification.

The witness is asked ‘is this the person you saw on the earlier occasion’?

Question 10

What warning must be giving to the witness before an ID procedure? When is it not needed?

Answer 10

The witness must be warned that the suspect might not be present.

Not needed for Group Identification

Question 12

What are possible objections to identification procedure evidence?

Answer 12

1. Failure to take into account reasonable objections to the appearance of others in the identification parade.
2. Failure to keep the witness fro the suspect before or during the identification process.
3. Failure to keep witnesses apart before or during the identification process.
4. Failure to warn witnesses that the suspect might not be shown at all.

Question 13

What happens if there is a breach of the rules surrounding identification procedures?

Answer 13

The court may exclude the evidence from trial if its admission will have an adverse effect on fairness.

Question 14

What does oppression include?

Answer 14

Torture
Inhuman or degrading treatment, and
The use/threat of violence

Question 15

When does a plea before venue take place?

Answer 15

Used when a defendant appears and is charged with an either way offence.

Question 16

What happens at a plea before venue hearing?

Answer 16

1. The charge against the defendant is read.
2. The clerk explains what happens if the defendant pleads guilty or not.
3. The clerk asks how the defendant would plead.
4. If the defendant indicates a guilty plea, the court proceeds to sentence.
5. If the defendant indicates a not guilty plea, or doesn’t give an indication, the court proceeds to allocation.

Question 17

What happens if the Magistrates’ Court accepts jurisdiction in an either way offence case?

Answer 17

The defendant will be told that they may elect to have the matter heard in the MC without a jury (summary trial) or in the Crown Court before a jury (trial on indictment).

Question 18

What happens if a defendant indicates that they intend to plead guilty in the Crown Court at a plea before venue hearing?

Answer 18

The hearing will be listed as soon as possible.

Question 19

What happens if the defendant doesn’t reply/doesn’t intend to plead guilty at a plea before venue?

Answer 19

The matter will be listed for a Plea and Case Management hearing - allowing enough time for the prosecution to prepare a full disclosure.

Question 20

When may the Magistrates’ Court not decline jurisdiction?

Answer 20

In the case of theft of items worth less than £200.

Question 21

What is a confession?

Answer 21

Any statement which is at least partly adverse to the person who made it.

Question 22

Who can a confession be made to?

Answer 22

Anyone - need not be made to a person in authority.

Question 23

When are confessions admissible?

Answer 23

If they are relevant to a matter in issue.

Something is relevant if it goes to proving or disproving some fact in issue between the prosecution + defence.

Question 24

How can the defence challenge the admissibility of a confession?

Answer 24

On the basis of either oppression or unreliability - things said or done likely to render the confession unreliable.

Question 25

If the admissibility of a confession is challenged, who has the burden of proof?

Answer 25

The prosecution must show beyond a reasonable doubt that neither oppression nor things said or done are likely to render the confession unreliable.

Question 26

In the Crown Court, how is the admissibility of a confession decided?

Answer 26

In the absence of the jury in a voir dire hearing.

Question 27

How is the admissibility of a confession decided in the Magistrates’ Court?

Answer 27

Since the bench is also the trier of fact, if they decide the evidence is inadmissible, they must put the evidence from their minds in deciding the case.

Question 28

What must be done if a confession is unreliable owing to oppression or due to things said or done?

Answer 28

It must be excluded

Question 29

When does the court have discretion to exclude evidence offered by the prosecution?

Answer 29

If it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding.

Question 30

When will exclusion for unfairness be used by the court?

Answer 30

If police officers have breached their duties under PACE, such as obtaining evidence through illegal searches, or improperly conducted identification procedures.

The breaches usually need to be significant and substantial and rendered the evidence unreliable.

Question 31

When can the court depart from the sentencing guidelines?

Answer 31

They must follow them unless it is against the interest of justice to do so.

Question 32

What aggravating factors is the sentencing court required to take into account?

Answer 32

1. Relevant previous convictions
2. Offence was committed was D was on bail
3. Offence was racially/religiously motivated
4. Offence was motivated by victim’s sexual orientation, transgender identity, or disability

Question 33

What aggravating factors does the court have discretion to take into account?

Answer 33

1. Offence was premeditated
2. Offence was committed in a group
3. Offence targeted a vulnerable victim
4. Offence was committed under the influence of drugs or alcohol
5. Offence involved abuse of a position of trust
6. Offence was committed against a victim who was providing a service to the public
7. Weapon was used in committing the offence.

Question 34

What mitigating factors does the court have discretion to take into account?

Answer 34

1. Offence was committed on impulse
2. Defendant was highly provoked/acted out of fear
3. Defendant has a disability or mental illness
4. Defendant played a minor role in the crime
5. Defendant attempted to make reparation with the victim
6. Defendant is very young or very old.

Question 35

What is the totality principle?

Answer 35

The sentence imposed must not be disproportionate to the overall seriousness of the offending behaviour.

Question 36

What is the benefit of pleading guilty early?

Answer 36

Defendant who pleads guilty at the first opportunity is entitled to a 1/3 reduction in sentence.

D who pleads guilty any other time before trial can be given less of a sentence reduction

Question 37

What might the court also take into account re the defendant?

Answer 37

i. age
ii. health
iii. good character
iv. work + home situation
v. progress since the offence was committed
vi. remorse for offending, and
vii. efforts to address the offending.

Question 38

What is a suspended sentence?

Answer 38

The offender isn’t placed in custody but will be liable to serve the sentence in custody if they break any conditions of the suspension or if they commit any further offences whilst subject to the suspended sentence.

Question 39

What is the maximum period of suspension?

Answer 39

2 years

Question 40

When is a Newton hearing held?

Answer 40

If the defendant pleads guilty to the offence but disputes the facts set out by the prosecution + offer to plead guilty on different facts, but the prosecution rejects the plea.

Question 41

How do you address a Circuit Judge/Recorder in the Crown Court?

Answer 41

Your Honour

Question 42

How do you address a District Judge in the Magistrates’ Court?

Answer 42

Judge

Question 43

How do you address a Lay magistrate?

Answer 43

Your Worship

Question 44

What structure in the advocacy should you use if the topic is ‘visual identification evidence - exclusion as improperly obtained’?

Answer 44

1. Identify the court’s discretion the exclude evidence under s78 PACE
2. Identify the relevant breaches of identification procedures under Code D, including:

i. taking into account reasonable objects to appearance of others in the ID procedure

ii. Keeping witnesses away from the suspect before and during the procedure,

iii. Keeping witnesses apart during the procedure, and

iv. Warning that the suspect might not be shown at all.

Question 45

What structure should you use in advocacy for ‘exclusion of confession’?

Answer 45

1. Remind the court that once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is not unreliable.
2. Remind the court the confession MUST be excluded if the prosecution don’t discharge this burden of proof under s76 PACE.
3. Identify that the confession is relevant to a matter in issue between prosecution + defence, and is therefore admissible;
4. Identify under which ground the confession is sought to be excluded + provide relevant details:
   - unreliability owing to things said or done to render it unreliable,
   - unreliability owing to oppression
5. Demonstrate causation from the things said or done or oppression to the confession.

Question 46

What structure should you adopt if the topic is ‘exclusion of any evidence’?

Answer 46

In addition to the other tests for admission or exclusion of evidence, remember that the court has a general discretion exclude prosecution evidence:
- if having regard to all the circumstances, including the circumstances in which the evidence was obtained, 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 under s78 PACE.

This could be used as an alternative/additional argument, in conjunction with other tests, or as a stand-alone argument.