SQE Criminal Practice

Question 1

A man is appearing at the magistrates’ court for a first hearing in relation to an either-way offence. The man intends to plead not guilty and have his trial in the Crown Court.

Which of the following statements best describes the process that will be followed during the hearing?

A. The man will state where he wants the trial to be heard and will indicate a not guilty plea. The case will then be allocated to the Crown Court.

B. The man will indicate a not guilty plea and the case will then be allocated to the Crown Court.

C. The man will indicate a not guilty plea and the magistrates will then decide whether they accept jurisdiction over the case. If they do, the man will state where he wants the trial to be heard and the case may be allocated to the Crown Court at the magistrates’ discretion.
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D. The man will indicate a not guilty plea and the magistrates will decide whether they accept jurisdiction over the case. If they do, the man will indicate where he wants the trial to be heard and the case will then be allocated to the Crown Court.

E. The man will indicate a not guilty plea and the magistrates will decide whether they accept jurisdiction over the case. If they do, the case will be adjourned to another date for the man to decide where he wants the trial to be heard.

Answer 1

Option D is correct because it accurately describes the process at a PBV and Allocation hearing.

Options A and B are only partially correct as they miss out stages of the hearing and/or put the elements of the hearing in the wrong order.

Option C is wrong as, having reached that stage, the man then has an absolute right to his case heard at the Crown Court, it is not in the magistrates’ discretion.

Option E is wrong because the entire process will take place at one hearing, the case will not be adjourned.

Question 2

A man makes his first appearance before the magistrates’ court charged with assault occasioning actual bodily harm. His solicitor is in receipt of the initial details of the prosecution case. It is alleged that the man approached the victim in the street and started an argument. When the victim attempted to walk away it is alleged that the man headbutted the victim once to the head causing a cut to the victim’s eye that required several stiches. The man intends to plead not guilty.

Which of the following statements is correct in relation to the allocation procedure?

A. The man must be tried in the Crown Court because of the nature of the offence.

B. The man must be tried in the magistrates’ court because of the classification of the offence.

C. The man can elect to be tried in the magistrates’ court or the Crown Court.

D. The man must be tried in the magistrates’ court if the magistrates accept jurisdiction.

E. The man may be tried in the magistrates’ court if the magistrates accept jurisdiction and he so consents.

Answer 2

Option E is correct. Where the magistrates accept jurisdiction, the defendant has a choice. He can consent to be tried summarily or elect Crown Court trial.

Option A is wrong. The magistrates’ main consideration will be whether their sentencing powers in the event of conviction will be sufficient. The nature of the offence is relevant, including the aggravating factors, but not conclusive. The magistrates will consider a number of factors such as the allocation guidelines issued by the Sentencing Guidelines and the statutory factors under s.19 MCA 1980.

Option B is wrong. Assault occasioning actual bodily harm is an either way offence. ss.17-21 Magistrates Court Act 1980 states that an allocation hearing must be held to determine whether the defendant should be tried summarily or on indictment.

Option C is wrong. The defendant has a right to elect trial by jury before the Crown Court only after the magistrates have determined that the case is suitable for summary trial.

Option D is wrong. If the magistrates accept jurisdiction, the defendant can elect trial by jury in the Crown Court.

Question 3

A boy aged 16 is charged with a minor offence of common assault. He has no previous convictions and is pleading not guilty to the charge. He has been identified as the offender by a witness. The witness saw him for a couple of seconds through the window of a passing bus. It was raining. The boy disputes this evidence. The boy’s parents are acting as appropriate adults and have significant capital assets, and both earn high incomes.

Will the boy be granted legal aid to be represented at trial?

A. No, legal aid will not be granted as the offence is minor and not likely to attract a custodial sentence.

B. No, legal aid will not be grated as his parents are acting as appropriate adults and have significant assets and high incomes.

C. Yes, the boy is a youth and under 18 so he will automatically be granted legal aid regardless of the nature of the case.

D. Yes, the boy is under 18 and the hearing of the offence will involve a substantial question of law.
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E. Yes, as it is in the boy’s parents’ interests that he is represented given the effect on their reputation.

Answer 3

Option D is correct. The boy disputes the identification of him by the witness and therefore the case will involve a complex area of law, namely the court needing to apply the Turnbull guidelines to such identification evidence.

Option A is wrong because, despite being a minor offence and unlikely to attract a custodial sentence, legal aid can still be granted as one of the other interests of justice factors can be satisfied.

Option B is wrong as applicants under the age of 18 do not need to satisfy the means test.

Option C is wrong as despite automatically passing the means test, he still must satisfy the interests of justice test.

Option E is wrong. It is right that one of the factors for consideration is that it is in someone else’s interests that the applicant be represented, but this is usually in reference to prosecution witnesses and it should not be used (as here) to argue that legal representation is in the general interests of the applicant’s family.

Question 4

A man has been charged with theft of high value goods and appears in the magistrates’ court for plea before venue. The prosecution case involves a confession made by the man during his audibly recorded interview.

The man has three similar previous theft convictions. He indicates a guilty plea and his case is committed to the Crown Court for sentence.

A. No, because he has pleaded guilty to the offence and has been committed to the Crown Court for sentence.

B. Yes, because theft is not a specified offence.

C. No, because he has been convicted in the past of the same offence and there are no exceptional circumstances.

D. Yes, because there are no substantial grounds to believe that he will steal prior to his sentencing hearing.

E. Yes, because he is not appearing before the court for breach of a community sentence.

Answer 4

A is correct. The presumption in favour of bail does not apply to defendants who have been committed to the Crown Court for sentence.

B is wrong. Although theft is not one of the specified offences for which the presumption in favour of bail is reversed, the man falls under the exception listed in statement A above.

C is wrong. This is not an exception to the presumption in favour of bail.

D is wrong. The substantial grounds do not impact on the presumption in favour of bail. They are however relevant when persuading the judge that bail should or should not be granted.

E is wrong. Whilst the presumption in favour of bail does not apply to a defendant who appears before the Court for a breach of a community sentence and this is not factually relevant, the man falls within the exception listed in statement A above.

Question 5

A solicitor attends the cells in the magistrates’ court to speak to his client who has been remanded in custody on his first appearance in court. The defendant’s case has been sent to the Crown Court for a plea and trial preparation hearing (PTPH), and the defendant wants to know whether he can make a further bail application in the magistrates’ court.

Can the defendant make a further bail application in the magistrates’ court?

A. Yes, because he is entitled to make a further bail application relying on the same facts and arguments as before.

B. Yes, because he is entitled to make a further bail application but only if he can refer to ‘new argument’.

C. Yes, because he is entitled to make two full bail applications before the magistrates’ court.

D. No, because his case has now been sent to the Crown Court and so his best option is to appeal against the bail decision to the Crown Court.
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E. No, because his case has now been transferred to the Crown Court and so he can now only apply for bail at the PTPH.

Answer 5

Option D is the best answer. At the first hearing after the hearing at which the magistrates refused to grant bail, the defendant’s solicitor is allowed to make a full application for bail using any argument as to fact or law, even if they used the same arguments in the first unsuccessful bail application. However, Options A and C would not be available because we are told that the defendant’s case has now been sent to the Crown Court and so the magistrate’s court will no longer have jurisdiction to hear a further bail application. Option B is wrong because the requirement for new argument only applies after two full bail applications have been made (Bail Act 1976, Sch 1, Pt IIA). Although Option E is technically correct, it will be much quicker to make a bail appeal before a judge in chambers in the Crown Court rather than waiting some time for the PTPH in the Crown Court.

Question 6

A man has been charged with an offence of robbery and burglary in relation to the same victim. Both are alleged to have occurred on the same day. The man intends to plead not guilty to both charges and wants to know which court or courts will deal with these cases.

Which of the following best describes the advice the man should be given?

A. Both cases will be tried in the Crown Court as the burglary charge is related to the robbery charge.
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B. The robbery charge will be dealt with in the Crown Court and the burglary charge may be dealt with in the Crown Court if the magistrates decide their powers of punishment are inadequate to deal with it.

C. The robbery charge will be dealt with in the Crown Court and the burglary charge will only be dealt with in the Crown Court if the man elects trial on indictment.

D. Both cases will be tried in the Crown Court as both charges relate to indictable offences.

E. Both cases are likely to be tried in the Crown Court as robbery is triable only on indictment.

Answer 6

Option A is the best answer. The either-way offence (burglary) relates to an offence triable only on indictment (robbery) because they are alleged to have taken place over a similar time period and both relate to the same victim (Crime and Disorder Act 1998, s 50A(3)(a)). Consequently, the burglary charge will be sent to the Crown Court without an allocation hearing by virtue of s 50A CDA 1998.

Options B and C are wrong because there will be no allocation hearing.

Option D is not the best answer because although both offences are indictable offences, the reason they will be both dealt with in the Crown Court is because the either-way offence is related to the offence that can only be tried on indictment.

Option E is wrong because both cases will be tried in the Crown Court, as opposed to being likely to be tried there.

Question 7

A man is charged with theft (an offence triable either-way). He makes his first appearance before the magistrates’ court from custody and indicates a not guilty plea. The magistrates indicate that they are prepared to accept jurisdiction and the client consents to trial in the magistrates’ court. The client does not want a bail application making on his behalf and he is remanded in custody on the ground that he will fail to surrender.

Which of the following is correct about the maximum time the man can spend in custody between his first appearance in the magistrates’ court and the start of his trial?

A. 28 days

B. 42 days

C. 56 days

D. 70 days

E. 182 days

Answer 7

Option C is the correct answer because 56 days is the relevant time limit from first appearance to the start of the summary trial for an either-way offence where the decision to proceed to summary trial is taken within 56 days (Prosecution of Offences (Custody Time Limits) regulations 1987 (reg.4(3)).

Optin A is wrong because 28 days is not a relevant time limit within the regulations.

Option B is wrong because 42 days is not a relevant time limit within the regulations.

Option D is wrong because 70 days is the relevant time limit from first appearance to the start of the summary trial for an either-way offence where the decision to proceed to summary trial is not taken within 56 days (reg.4(2)).

Option E is wrong because 182 days is the the maximum period of custody when a case is sent for trial to the Crown Court from the time when the accused is sent for trial and the start of the trial in the Crown Court (reg.5(6B)).

Question 8

A solicitor is representing a client for her first appearance in court, having been charged with three allegations of theft from shops. It is alleged that the client stole a box of luxury chocolates valued at £65, a bottle of perfume valued at £95 and a makeup set valued at £50. The client asks her solicitor whether if she pleads guilty to all three allegations she is likely to be sentenced in the Crown Court.

What is the best advice the solicitor should give the client?

A. This case will be treated as ‘low-value shoplifting’ as the individual value of the goods taken are each below £200. Therefore, the case will remain in the magistrates’ court.

B. This case will be treated as ‘low-value shoplifting’ as the individual value of the goods taken are each below £250. Therefore, the case will remain in the magistrates’ court.

C. Although each theft relates to a value under £200, the aggregate value comes to £210 and so this case will not be treated as ‘low-value shoplifting’. This means that these offences will be dealt with as either-way offences and due to the value involved it is likely to be dealt with at the Crown Court.

D. Theft is an either-way offence and so can be dealt with either by the magistrates’ court or the Crown Court regardless of the value involved. It is for the court to determine the correct venue in this case.

E. Although each theft relates to a value under £200, the aggregate value comes to £210 and so this case will not be treated as ‘low-value shoplifting’. This means that these offences will be dealt with as either-way offences and due to the value involved it is likely to be dealt with at the magistrates’ court.

Answer 8

Option E is correct. Section 22A of the Magistrates’ Courts Act 1980 makes ‘low-value shoplifting’ a summary offence. ‘Low-value shoplifting’ means an offence under s 1 of the Theft Act 1968 in circumstances where the value of the stolen goods does not exceed £200. If the defendant is charged at the same time with more than one allegation of shop theft then the ‘aggregate’ value must be under £200 for it to be treated as a summary offence. In light of the value of the goods taken and the fact that it is the client’s first time in court, it is likely that the magistrates’ court will deal with these offences.

Option A is wrong. Due to the provisions under s.22A of the Magistrates’ Court Act 1980 regarding ‘low-value shoplifting’. If the defendant is charged at the same time with more than one allegation of shop theft then the ‘aggregate’ value must be under £200 for it to be treated as a summary offence.

Option B is wrong. Due to the provisions under s.22A of the Magistrates’ Court Act 1980 regarding ‘low-value shoplifting’. If the defendant is charged at the same time with more than one allegation of shop theft then the ‘aggregate’ value must be under £200 for it to be treated as a summary offence.

Option C is wrong. In light of this being the client’s first time in court and due to the low value of the goods involved, it is not likely that the court will commit this case to the Crown Court for sentence.

Option D is wrong. Due to the provisions under s.22A of the Magistrates’ Court Act 1980 regarding ‘low-value shoplifting’.

Question 9

A man is due to appear in the magistrates’ court charged with an offence of affray. It is alleged that he was involved in an incident involving a doorman at a nightclub. The man intends to plead guilty. The man is currently the subject of a suspended sentence of imprisonment for an offence of wounding. The man is currently unemployed and in receipt of income-based job seekers allowance. The man is the sole carer for his mother who has recently been diagnosed with motor neurone disease.

Will the man be entitled to receive publicly funded legal representation at court?

A. Yes, because it will be in the interests of his mother that he is represented as he is her sole carer and he automatically satisfies the means test.

B. Yes, because he will lose his liberty if he is convicted, subject to him satisfying the means test by completing a means form.

C. Yes, because it will be in the interests of justice as it is likely that he will lose his liberty and he automatically satisfies the means test.

D. No, because it will not be in the interests of the victim that he is represented as he is pleading guilty, so the man will not need to cross-examine the victim.

E. No, because he will not necessarily lose his liberty if he is convicted, although he does automatically satisfy the means test.

Answer 9

Option C is the correct answer. The man is ‘likely’ to lose his liberty because of the seriousness of the offence itself and also because he is subject to a suspended sentence of imprisonment which is likely to be activated when he pleads guilty to the present offence. The man automatically satisfies the means test as he is in receipt of income-based job seekers allowance (JSA).

Option A is wrong because although ‘It is in someone else’s interests that I am represented’ is capable of being a reason to grant legal aid under the interests of justice test, this should not be used to argue that legal representation is in the general interests of the defendant’s family.

Option B is wrong, because although it is (highly) likely the man will lose his liberty, it is not certain that he will and moreover, he will not need to complete a means form as he automatically satisfies the means test as he is in receipt of JSA.

Option D is not the best answer, because although it is correct to say that it will not be in the interests of the victim that he is represented as he is pleading guilty, so the man will not need to cross-examine the victim, the interests of justice test is still satisfied (see option C).

Option E is not the best answer, because although he will not necessarily lose his liberty if he is convicted, it is still ‘likely’ that he will.

Question 10

A solicitor represents an adult defendant who has been charged with an offence of burglary of office premises. He has 2 previous convictions for failing to surrender to the court. He has failed to attend during the current proceedings and a warrant was issued for his arrest. He has now been arrested on the warrant. He does not have a reasonable excuse for failing to attend court. The prosecution intend to apply for a remand in custody and the solicitor is instructed to make an application for bail.

Which of the following factors are the prosecution most likely to rely on in opposing bail on the ground of failing to surrender to custody?

A. Substantial grounds to believe that he will fail to attend.

B. Substantial grounds for believing that he will commit further offences.

C. He should be remanded in custody for his own welfare.

D. The nature and seriousness of the offence.

E. The defendant’s record in respect of previous grants of bail in criminal proceedings.

Answer 10

E is the correct answer because it is a factor within the Bail Act 1976 Schedule 1 Pt 1 para 9 and he has 2 previous convictions for failing to surrender to bail as well as failing to surrender during the current proceedings.

A is wrong because this is a ground for refusing bail and not a factor in support of this ground.

B is wrong because this is a ground for refusing bail and not a factor in support of this ground.

C is wrong because this a ground for refusing bail and it relates to a defendant who is a youth and not an adult.

D is wrong because the offence relates to burglary of commercial premises and the prosecution are more likely to be concerned with his history of failing to surrender to court.

Question 11

A solicitor attends the magistrates’ court to represent a man for an either-way offence of aggravated vehicle-taking. At the allocation hearing, the magistrates decide that the case is suitable for summary trial.

What will the magistrates now explain to the man?

A. That having determined that the case is suitable for summary trial, if the man is subsequently convicted he cannot be committed to the Crown Court for sentence.

B. That the man can now consent to be tried in the magistrates’ court or elect to have trial by jury in the Crown Court.

C. That if the man consents to summary trial, the trial will be in the magistrates’ court, but if he is convicted he must be sentenced in the Crown Court.

D. That the trial must now proceed in the magistrates’ court.

E. That the trial should proceed in the Crown Court regardless of the decision of the magistrates as it is an either-way offence.

Answer 11

Option B is correct. As this is an either-way offence, the man can either accept summary trial or elect to have his case tried in the Crown Court.

Option A is wrong. As this is an either-way offence, the magistrates’ court retains the power to commit the case to the Crown Court for sentence even after the trial has been concluded.

Option C is wrong. The man can consent to trial in the magistrates’ court but the sentencing may either take place at the Crown Court or at the magistrates’ court depending on whether the court’s powers are sufficient following the outcome of the trial.

Option D is wrong. The man can choose to elect trial at the Crown Court should he wish to do so.

Option E is wrong. The magistrates’ court have accepted jurisdiction and as such he will either be tried at the magistrates’ court or the Crown Court depending on whether the man chooses to elect trial at the Crown Court or consent to summary trial.

Question 12

A man makes his first appearance before the magistrates’ court charged with assault occasioning actual bodily harm. The man pleads not guilty at the plea before venue hearing and the magistrates decide that the case is suitable for summary trial.

Which of the following statements would be a legitimate reason for the man to consent to trial in the magistrates’ court?

A. The man should consent to summary trial because if granted legal aid he will not be required to contribute to the costs incurred by the prosecution.

B. The man should consent to summary trial because the procedure for deciding on the admissibility of disputed prosecution evidence is better for the defendant in the magistrates’ court.

C. The man should consent to summary trial because if convicted he will have to be sentenced by the magistrates. The sentencing powers available to a Crown Court judge are much greater.

D. The man should consent to summary trial because if granted legal aid in the magistrates’ court, a defendant is not required to contribute towards his defence costs. The defendant may be required to do so in the Crown Court.

E. The man should consent to summary trial because in the magistrates’ court there is no obligation on the defendant to submit a defence statement until the prosecution has made its initial disclosure of unused material.

Answer 12

Option D is correct. If a defendant is granted legal aid, he will not be required to contribute towards his defence costs in the magistrates’ court but may be made subject to a contributions order in the Crown Court.

Option A is wrong. If a defendant is convicted in either the magistrates’ court or the Crown Court, he is likely to be ordered to make a contribution towards the costs incurred by the prosecution.

Option B is wrong. The procedure for deciding on the admissibility of disputed prosecution evidence is better for the defendant in the Crown Court than the magistrates’ court.

Option C is wrong. Even if the defendant is tried before the magistrates’ court, the magistrates retain the power to commit the defendant to the Crown Court for sentence.

Option E is wrong. There is no obligation to serve a defence statement in summary proceedings.

Question 13

A solicitor is representing a defendant at the first hearing in the magistrates’ court. The solicitor has a conference with the defendant before the hearing to take instructions.

The defendant has been charged with criminal damage (an either way offence where the value of the damage exceeds £5,000). It is alleged that the defendant was upset when her hairdresser cut her hair too short before an important work event. The defendant allegedly lost her temper and began to throw equipment around the hair salon. This resulted in damage as follows:

Smashed large mirror £1,650

Broken bank of backwash chairs £1,700

Broken window £947

Bent specialist scissors £704

The defendant denies causing the damage; she says that the hairdresser lost his temper when she complained and he caused the damage himself. She wants to know where her trial will take place. She would prefer a Crown Court trial as she believes that a jury would be more sympathetic towards her defence. The defendant has never been in trouble with the police before.

What is the best advice that the solicitor can give to the defendant about the venue for her trial?

A. The trial must take place in the Crown Court.

B. The trial is likely to take place in the Crown Court.

C. The trial is likely to take place in the magistrates’ court.

D. The magistrates will decide where the trial will take place.

E. The trial must take place in the magistrates’ court.

Answer 13

Option B is correct. Criminal damage is a summary-only offence where the value of the damage is £5,000 or less. Here, the total value of the damage is £5,001. The offence is therefore an either-way offence (as the facts make clear). Following a not guilty indication, the magistrates will go through the allocation procedure to determine whether they can keep the case. However, even if the magistrates accept jurisdiction, the defendant has the right to elect a Crown Court trial. As the defendant has indicated she would like her trial to be in the Crown Court, this is where her trial is likely to take place.

Option A is wrong, as criminal damage is not an indictable-only offence.

Option C is wrong. Although the trial could take place in the magistrates’ court, the defendant wants a jury trial and so is likely to elect to go to the Crown Court.

Option D is wrong. The magistrates will go through the allocation procedure and decide whether their sentencing powers are sufficient. Only if they decide that their powers are insufficient will they decline jurisdiction and send the case to the Crown Court regardless of the defendant’s views. However, it is likely that the magistrates would accept jurisdiction in this case given that the value of the alleged damage is only £1 more than the threshold for the summary-only offence and the defendant has no previous convictions. The choice of venue is therefore likely to be the defendant’s.

Option E is wrong. The value of the damage exceeds £5,000 and therefore it is not a summary-only offence.

Question 14

A man makes his first appearance before the magistrates’ court charged with criminal damage. It is alleged that he struck his neighbour’s caravan with a hammer causing damage to the value of £7,000. The man refuses to enter a plea.

Which of the following statements best describes what will happen next?

A. The magistrates will send the man’s case to the Crown Court for trial for the offence of criminal damage.

B. The magistrates will sentence the man for the offence of criminal damage.

C. The magistrates will commit the man’s case to the Crown Court for sentence for the offence of criminal damage.

D. The magistrates will adjourn the man’s case for trial to the magistrates’ court.

E. The magistrates will determine whether the offence appears more suitable for trial in the magistrates’ court or the Crown Court.

Answer 14

Option E is correct. If the defendant makes no indication as to plea, the court will treat it as a not guilty plea. Criminal damage, where the value is greater than £5,000, should be classified as an either way offence. The magistrates will therefore need to determine whether the offence appears more suitable for trial in the magistrates’ court or the Crown Court.

Option A is wrong. If the defendant makes no indication as to plea, the court will treat it as a not guilty plea. However, criminal damage is not classified as an indictable only offence, therefore the man’s case should not be sent immediately to the Crown Court.

Option B is wrong. If the defendant makes no indication as to plea, the court will treat it as a not guilty plea and will not therefore move to sentence.

Option C is wrong. If the defendant makes no indication as to plea, the court will treat it as a not guilty plea and will not therefore commit for sentence. In addition. it is unlikely that the magistrates would deem their sentencing powers insufficient in this case.

Option D is wrong. If the defendant makes no indication as to plea, the court will treat it as a not guilty plea, but the criminal damage must be £5,000 or under to be classified as a summary only offence and therefore triable only in the magistrates’ court. The value of the damage here is £7,000.

Question 15

A solicitor is representing an adult client appearing in the magistrates’ court for a first hearing in relation to an offence of theft of food valued at £50 from a shop. The client intends to plead not guilty. The solicitor advises the client that she can only have her trial in the magistrates’ court.

Has the client has been given the correct advice about her trial venue?

A. Yes, because theft is a summary only offence and the client cannot therefore have her trial in the Crown Court.

B. Yes, because the facts of this case make it ‘low-value shoplifting’, which is treated as a summary only offence and the client cannot therefore have her trial in the Crown Court.

C. Yes, because the offence is minor and the magistrates will clearly accept jurisdiction over it, meaning the client will have her trial in the magistrates’ court.

D. No, because theft is an either-way offence and so the magistrates’ court may decline jurisdiction and allocate the case to the Crown Court.

E. No, because although the facts of this case make it ‘low-value shoplifting’, the client retains her right to elect trial in the Crown Court.

Answer 15

Option E is correct, because it accurately reflects the provisions of s.22A Magistrates’ Courts Act 1980, namely that theft from a shop valued at under £200 is treated as if it were a summary only offence, but at the start of the hearing the defendant must be asked whether they wish to have their trial in the Crown Court. The right to elect a Crown Court trial is therefore preserved, albeit that there is no power on the part of the magistrates’ court to allocate the case to the Crown Court or commit it for sentence, therefore option D, is not the best answer as it gives this as the reason.

The advice given at options A to C are therefore wrong.

Question 16

A boy, aged 16, is arrested on suspicion of criminal damage, it being alleged that he damaged a neighbour’s car by using a sharp object to write an offensive message on the bonnet of the car.

The boy was arrested shortly after the damage was caused on his parents’ driveway which is very close to where the neighbour’s car was parked. A rusty nail was also found on the driveway very close to where the boy was stood when he was arrested.

When interviewed the boy had an appropriate adult present but he declined access to legal advice and refused to answer any questions. At trial the boy will claim that he did not cause the damage and was returning home when he was arrested and that he was not aware of the presence of the rusty nail on the driveway.

Assuming the boy was given all appropriate cautions and warnings during his interview, which of the following best describes the likely inferences that may be drawn in this case?

A. That the court may draw such inferences as appear proper from his failure to put forward his defence at a time he could reasonably be expected to have mentioned this.

B. That the court may draw such inferences as appear proper from his failure to account for the presence of the rusty nail found near him at the time of his arrest and his presence on his parents’ driveway at or about the time of the offence.
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C. That the court may draw such inferences as appear proper from his failure to put forward his defence at a time he could reasonably be expected to have mentioned this and his failure to account for his presence on his parents’ driveway at or about the time of the offence.

D. That the court may draw such inferences as appear proper from his failure to put forward his defence at a time he could reasonably be expected to have mentioned this and his failure to account for the presence of the rusty nail found near him at the time of his arrest and his presence on his parents’ driveway at or about the time of the offence.

E. No proper inferences can be drawn in these circumstances since the boy is a juvenile and did not have the benefit of legal advice before he was interviewed.

Answer 16

Option D is the best answer. Sections 34, 36 & 37 CJ&PO Act 1994 are all engaged in this scenario and therefore proper inferences (which are likely to be adverse inferences) may be drawn against the boy from his failure to put forward his defence and to account for the potentially incriminating evidence. Note that s.36 allows for inferences to be drawn where there is a failure to account for any object, substance or mark found on a person, in or on his clothing, otherwise in his possession or here, in any place where he is, at the time of his arrest.

Option A is not the best answer as this only deals with inferences being drawn under s.34.

Option B is not the best answer as this only deals with inferences being drawn under ss.36 and 37.

Option C is not the best answer as this only deals with inferences being drawn under ss.34 and 37.

Option E is wrong because the provisions under the CJPO Act 1994 apply to all suspects, including juveniles and there is no suggestion here that the police refuse the boy access to legal advice, but rather he declined such access.

Question 17

A woman is on trial for murder. She raises the defence of alibi, claiming that at the time of the victim’s death she was at a friend’s party. She wishes this defence to be considered by the jury. The woman enters the witness box and testifies by giving details of her alibi; including whose party is was, where it was, what time it started and who was present.

Which statement best explains the operation of the evidential burden on the defence in this matter?

A. The woman cannot discharge her burden, of proving her defence beyond a reasonable doubt, without further corroborating evidence.

B. The woman cannot discharge her burden, of proving her defence on a balance of probabilities, without further corroborating evidence.

C. The woman can discharge her burden, of proving her defence on the balance of probabilities, by testifying at trial.

D. The woman can discharge her evidential burden, putting some evidence of her alibi defence before the court, by testifying at trial.

E. The woman does not have any burden to satisfy, the burden rests solely on the prosecution.

Answer 17

Option D is correct.

Whilst a defendant is not obliged to place any evidence before the court to show that she is innocent of the offence with which she has been charged, as she is raising a specific alibi defence, and wishes the jury to consider that defence, she must place some evidence of that defence before the court if she wishes the court to consider that defence when deciding the verdict. This is an evidential burden. It is relatively simple for her to satisfy this burden, all she needs to do is give details of her defence in the witness box.

Option A is wrong as a defendant with an alibi defence does not have any legal (persuasive) burden to prove their defence beyond a reasonable doubt.

Option B is wrong as a defendant with an alibi defence does not have any burden to prove their defence on the balance of probabilities.

Option C is wrong as a defendant with an alibi defence does not have any burden to prove their defence on the balance of probabilities.

Option E is wrong as on these facts, the woman wishes her alibi defence to be considered by the jury and consequently she must satisfy the evidential burden by putting some evidence of her defence before the court.

Question 18

A witness who gives evidence for the CPS in an assault case, identifies the defendant as the person who committed the crime. The defendant disputes that identification, claiming the witness is mistaken.

Which of the following best describes whether the witness will be an identification witness whose evidence will be subject to the Turnbull guidelines?

A. Where the witness identifies the defendant informally.

B. Where the witness identifies the defendant from photographs shown to the witness by the police.

C. Where the witness claims to recognise the defendant based on his bad reputation in the area.

D. Where the witness makes a dock identification of the defendant when testifying at the trial.

E. Where the witness claims to recognise the defendant because the defendant’s physical appearance matches the description given by the victim.

Answer 18

Option A is the correct answer. The guidelines were laid down in the case of R v Turnbull [1977] QB 224. A witness will identify the defendant as the person who committed the offence if:

(1) the witness picks out the defendant informally; or

(2) the witness identifies the defendant at a formal identification procedure at the police station; or

(3) the witness claims to recognise the defendant as someone previously known to him.

Such a witness is known as a ‘Turnbull witness’. In all three cases, the Turnbull guidelines will apply only if the defendant disputes the visual identification made by the witness. Thus, option A is the correct answer because the witness picks out the defendant informally.

Option B is wrong because although the witness identifies the defendant from photographs shown by the police, at this stage this is not identification evidence. The police would then need to arrest the defendant and if necessary hold an identification procedure. If the witness then picks out the defendant at the later procedure, the witness will then become a ‘Turnbull witness’.

Option C is wrong because although the witness claims to recognise the defendant, this is only from his bad reputation and not as someone previously known to him.

Option D is wrong because dock identifications should not be allowed.

Option E is wrong because the witness claims to recognise the defendant because the defendant’s physical appearance matches the description given by the victim, whereas the Guidelines require that the defendant be someone previously known to the witness if it is a recognition case.

Question 19

A boy, aged 14, has been charged with robbery. The boy does not suffer from any recognised medical condition but his mental age has been assessed as that of a 9-year-old and he is distressed at the prospect of having to testify at trial.

If the boy does not testify, will it be appropriate for an adverse inference to be drawn from his silence at trial?

A. Yes, because an adverse inference will always be drawn if a defendant refuses to testify at trial.

B. Yes, because distress about testifying is not in itself a sufficient reason and will not by itself prevent the drawing of an adverse inference.
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C. No, because an adverse inference cannot be drawn against a juvenile with a mental age of a 9-year-old.

D. No, because it appears that the mental condition of the boy makes it undesirable for him to give evidence.

E. Yes, because the court will require the boy to testify to put forward his defence if he is to be acquitted.

Answer 19

Option B is the best answer because distress about testifying will not be sufficient to engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an adverse inference where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’.

So Option A is wrong because an adverse inference will not always be drawn where an accused does not testify – Option C is wrong because the mental age alone would not be a sufficient reason (see R v Friend (1997)). Although Option D does correctly state the above statutory exception, on these facts, the boy does not appear to have a medical condition that would make it undesirable for him to testify (contrast that with R v Friend (No2) (2004) where evidence then came to light that the defendant also suffered from ADHD, which was found to be such a medical condition). Option E is wrong because a defendant has a right to remain silent at trial and cannot be convicted on his silence alone. Moreover, the boy does not necessarily need to testify in order to be acquitted.

Question 20

A fight between two rival gangs takes place in a city centre. This is witnessed by a member of the public who gives a statement to the police in which they positively identify the defendants who are then charged with affray.

The witness subsequently contacts the police to withdraw their witness statement, explaining that whilst the contents of their statement is true, they are now in fear of testifying having learned of the reputation for violence of these two gangs.

Is the court likely to conclude at this stage that the witness statement can be admitted in the absence of the witness?

A. Yes, because the witness is in fear of testifying and the court will therefore allow the witness statement to be admitted in the absence of the witness.

B. Yes, because the court will conclude that it is in the interests of justice to allow the witness statement to be admitted in the absence of the witness.

C. No, because it will always risk unfairness to the accused because they will lose the ability to cross-examine the witness in person which will deprive them of a right to a fair trial.

D. No, because the court will need to consider whether a special measures direction could be made before considering whether it would be in the interests of justice to admit the witness statement in the absence of the witness.
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E. No, because the evidence contained in the witness statement is not first-hand hearsay and so the relevant prescribed reason for admissibility has not been met.

Answer 20

Option D is the best answer. Witness statements may be admitted in the absence of the witness under s.116 CJA 2003 where one of 5 prescribed reasons have been satisfied. Here the relevant prescribed reason would be where the witness is in fear of testifying and the court gives leave for the statement to be admitted (s.116(2)(e). Leave will generally be given where it is in the interests of justice to do so (s.116(4)). However, before a court considers whether leave should be given it will always first consider whether the making of a special measures direction would be appropriate, meaning that option D correctly identifies the approach a court will take.

This also explains why options A and B are not the best answers.

Option C is wrong because although the accused will lose the ability to cross-examine the witness in person, which in turn may deprive them of a right to a fair trial, this will not always be the case.

Option E is wrong because it would appear that the evidence contained in the witness statement is first-hand hearsay, given that the witness was present and witnessed the defendants’ involvement in the affray. Moreover, this is not in any event one of the relevant five prescribed reasons set out in s.116(2) CJA 2003.

Question 21

A witness to an assault has provided the police with a witness statement but the witness cannot now attend court to testify at the defendant’s trial because they returned to New Zealand after spending some time working in the UK. Shortly before the trial date the officer in charge has received confirmation from the witness that they are not prepared to return to the UK to testify.

Are the prosecution likely to be allowed to rely on the witness statement in the absence of the witness at trial?

A. Yes, because the witness is outside the UK and will not be available to testify at trial.

B. Yes, because the witness statement contains first-hand hearsay and it would not be practical to secure the witness’ attendance at trial.

C. No, because it would not be in the interests of justice as it will deprive the defendant of the opportunity to cross-examine the witness.

D. No, because there is no prescribed reason available to the prosecution to adduce the witness statement in the absence of the witness.

E. Yes, because the witness is outside the UK and it is not reasonably practical secure their attendance.

Answer 21

Option E is the best answer. Witness statements may be admitted in the absence of the witness under s.116 CJA 2003 where one of 5 prescribed reasons have been satisfied. Here the relevant prescribed reason is set out fully and accurately at option E. Before allowing such evidence to be admitted, the court will need to be satisfied that it is still not reasonably practicable at the time of the trial to secure the witness’ attendance, but we are told that the OIC will be able to confirm this – see R v Mattey, R v Queeley [1995] Crim LR 308.

This also explains why options A and B are not the best answers as neither fully sets out the two-fold test at s.116(2)(c).

Option C is wrong because the only prescribed reason that is subject to an interests of justice test is s.116(2)(e), where the witness is in fear of testifying.

Option D is wrong because as explained above this is one of the 5 prescribed reasons under s.116(2).

Question 22

A man has been arrested on suspicion of assault occasioning actual bodily harm following an altercation with a doorman at a club. The man claims that the doorman was the aggressor and he only acted in self-defence. The doorman has a previous conviction for an offence of assault occasioning actual bodily harm, which was committed in markedly different circumstances to the present alleged offence. The defence want to adduce evidence of this conviction to show that it was the doorman who was guilty of committing the offence rather than the defendant.

Which of the following best describes whether the defence will be allowed to adduce evidence of the doorman’s previous conviction for this purpose?

A. The court is likely to allow the defence to adduce this evidence because it undermines the doorman’s credibility as a witness.

B. The facts of the previous conviction relate to an offence of violence rather than dishonesty and so the court is unlikely to allow the admission of this bad character evidence.

C. The court is likely to allow the defence to adduce this evidence as the previous conviction is for an offence of violence and the defence will claim that the doorman was the aggressor.

D. The facts of the previous conviction are markedly different from the present allegation and so it is unlikely that the court will allow the defence to adduce this evidence at trial for this purpose.

E. The court is not likely to allow the defence to adduce this evidence as it is not evidence of misconduct in relation to the current alleged offence.

Answer 22

Option D is the statement that best describes the court’s likely approach to dealing with the admissibility of this non-defendant’s bad character evidence under s 100(1)(b) CJA 2003. It is unlikely to have substantial probative value in relation to an important matter in issue in the proceedings since it does not appear to be relevant to the issue of the witness’ credibility nor their propensity to be the aggressor. The facts are markedly different to the present allegation - see R v Gadsby (2005).

Option B is not the best answer as a court may allow such bad character evidence to be admitted either to undermine the witness’ credibility or, as we are told here, where the defence want to adduce it to show that it was the doorman who was the aggressor.

Option C is also wrong because although a previous conviction for an offence of violence may be admissible under s 100(1)(b), it would only be so if it can be said to have probative value to show that the doorman was the more likely person to have been the aggressor and yet his previous conviction was committed in markedly different circumstances.

Option E is not the best answer because the previous conviction could be evidence of misconduct in relation to the current alleged offence, but the court will have regard to the nature and extent of the similarities and dissimilarities between this previous conviction and the facts of the current offence. If the facts of the previous conviction are markedly different, it is unlikely that the court will allow the defendant to adduce this evidence at trial.

Question 23

A man has been charged with an offence of assault occasioning actual bodily harm. The prosecution allege that the man assaulted the complainant because he believed that the complainant had implicated him in relation to an offence of fraud for which the man received a custodial sentence. It is alleged that when the man was released from prison he confronted the complainant and assaulted him. There are no other witnesses for the prosecution or the defence and the man denies the allegation and will plead not guilty.

What is the most likely course of action the prosecution will take in relation to the admissibility of the man’s previous conviction for fraud?

A. Make an application to adduce evidence of this conviction as important explanatory evidence.

B. Make an application to adduce evidence of this conviction as evidence to show that the man has a propensity to commit an offence of the kind with which he is presently charged.

C. Make an application to adduce evidence of this conviction to show that it has substantial probative value in relation to an important matter in issue between the defendant and the complainant.

D. No application is required because the defence are likely to agree to the admission of this evidence.

E. Make no application as the court is unlikely to allow the admission of this evidence as it is likely to have such an adverse effect on the fairness of the proceedings.

Answer 23

Option A is the statement that explains the prosecution’s most likely approach to adducing this bad character evidence. They will argue that without hearing of it, a court will find it difficult to understand the case and the value of this evidence in understanding the case as a whole is substantial (note that substantial in this context simply means it is more than merely trivial or marginal). See gateway s.101(1)(c).

Option B sets out one of the tests under gateway (d) which would not be relevant here given that the earlier conviction was for an offence of fraud and the present allegation relates to ABH.

Option C sets out the test for gateway (e) which is not available to the prosecution.

Option D is not the best answer because there would be no reason why the defence would agree to the admission of this evidence (see gateway (b)).

Option E is not the best answer because this is referring to the test set out in s.101(3) CJA 2003 that the defence can use to object to the admission of bad character evidence under gateways (d) and (g) but not gateway (c).

Question 24

A man has been charged with affray. A person who was present at the scene claims to have recognized the man as being responsible for the offence. This person is now not willing to testify at trial but there is other independent evidence that also implicates the man. The man will claim at trial that it was this other person who actually committed the offence and that his only involvement was to try to calm the situation down. This other person has two recent convictions for public order offences which occurred in similar circumstances to the present offence.

What will the defence need to establish in order for evidence of this other person’s previous convictions to be admissible at trial?

A. They have substantial probative value in relation to an important matter in issue in the proceedings because they support the defendant’s claim that it was this other person who was guilty of the offence.

B. They have probative value in relation to proving who was responsible for the commission of this offence and they are offences within the same category as the present offence.

C. That evidence of these previous convictions are more than merely marginal or trivial and they help to undermine the credibility of this other person.

D. They provide important explanatory evidence without which the court would find it impossible or difficult to understand the case; and its value for understanding the case as a whole is substantial.

E. The defence cannot adduce evidence of these previous convictions since this other person will not be a witness in the proceedings.

Answer 24

Option A is the best answer because admissibility under s 100(1)(b) is subject to an enhanced test of substantial probative value in relation to an important matter in issue in the proceedings. Here the convictions appear to be likely to support the defendant’s claim that it was this other person who was guilty of the offence, although the court will always have regard to the nature and extent of the similarities and dissimilarities between these two previous convictions and the facts of the current offence. Here we are told that they ‘occurred in similar circumstances to the present offence’.

Option B is wrong because the test requires substantial probative value (not just probative value) and moreover, there is not a category for public order offences.

Option C is wrong because although the test for substantial probative value is thought to be something that is more than merely marginal or trivial, the defence will not be seeking to admit it to undermine this person’s credibility since they are not a witness in the case, but to show that they are the person who was more likely to have committed the offence.

Option D is wrong because this sets out the test for admissibility under s 100(1)(a) not under gateway (b).

Option E is wrong because the admissibility of evidence of a non-defendant’s bad character under s 100(1) CJA 2003 is not dependent on the other person being a witness. Bad character evidence under s 100(1) applies to anyone other than the defendant.

Question 25

A defendant has been charged with burglary and entered a not guilty plea. The defendant made no reply to arrest, made no comment in his interview, made no reply to charge and has not made any significant comments to the Police.

The defendant has not yet submitted a defence statement and has three previous convictions for theft (by way of shoplifting) from last year and one for assault from seven years ago. The defendant pleaded Guilty to all of the theft offences and not guilty to the assault but was convicted after trial in which he testified in his defence.

What is the most appropriate basis upon which an application could be made by the prosecution to adduce evidence of the defendant’s bad character?

A. That the defendant has a propensity to commit offences.

B. That the defendant has a propensity to commit offences of the kind with which he is charged and a propensity to be untruthful.

C. That the defendant has a propensity to commit offences of the kind with which he is charged.

D. That the defendant has a propensity to be untruthful.

E. There is no basis upon which an application could be made to adduce bad character evidence.

Answer 25

Option C is the appropriate basis for adducing the bad character in this scenario under s.103(1)(a) and (b) CJA 2003 for the purposes of adducing the evidence under gateway (d).

Option A is not the best answer as it does not contain the full and correct description of the propensity on which the prosecution would be relying.

Option B is not the best answer as on the information currently available there is not enough to support an application under the propensity to be untruthful basis as the defendant’s credibility does not appear to be in issue.

Option D is not the best answer for the same reasons as B above.

Option E is not the best answer as there is a basis upon which an application could be made to adduce bad character evidence.

Question 26

Two defendants, a man and a woman, have been jointly charged with an offence of affray. It is alleged that they both threatened and then attacked their victim. The man accepts that he was present but claims that he had no involvement in the attack and that it was the woman who was solely responsible. The woman also accepts that she was present but claims that her only involvement was to try and stop the man from attacking the victim. The woman has no previous convictions whereas the man has a number of recent convictions for Public Order Act offences, to which he pleaded guilty to.

On what basis is the woman likely to apply to adduce evidence of the man’s previous convictions?

A. To show that these convictions have probative value in relation to an important matter in issue between the man and the woman. Namely, which one of them was the more likely to have committed this offence.

B. To show that these convictions have substantial probative value in relation to an important matter in issue between the man and the woman. Namely, which one of them is more likely to be telling the truth.
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C. To show that the man has a propensity to commit the kind of offence they have both been charged with, thereby suggesting that it was the man who committed the offence and not her.

D. To show that the man has previous convictions which are all within the same category of offences to help prove that he was the more likely of the two to have threatened and attacked the victim.

E. To show that the man is the more likely of the two to have committed this offence as he has attacked the character of the woman by claiming that she was the aggressor and he was not involved in the attack.

Answer 26

Option C is the most likely basis the woman will rely on to adduce evidence of her co-accused’s previous convictions under gateway s101(1)(e). The test under this gateway is where the previous convictions can be said to have substantial probative value in relation to an important matter in issue between them. Here, to show that the man has a propensity to commit the kind of offence they have both been charged with thereby suggesting that it was the man who committed the offence and not her – see R v Edwards (2005).

Option A is wrong because the test under gateway (e) is an enhanced test requiring the evidence to have ‘substantial’ probative value, not just probative value.

Option B is wrong because although it accurately sets out the test for substantial probative value in relation to an important matter in issue between the man and the woman, it will not do this in relation to which one of them is more likely to be telling the truth, but rather which one of them has the propensity to commit this type of offence.

Option D is wrong because there is not a Public Order Act offences category to establish such propensity.

Option E is wrong because this sets out the test under gateway (g) which is only available to the prosecution.

Question 27

A defendant is charged with an offence of fraud in relation to a false insurance claim. Whilst testifying at trial she claims that she is not a dishonest person and always tells the truth. The woman has three previous convictions for offences of theft from shops, all of which she pleaded guilty to.

Are the prosecution likely to be allowed to adduce evidence of these previous convictions at the woman’s trial?

A. Yes, because these convictions are likely to provide the court with important explanatory evidence, without which the court will find it difficult to properly understand the case.

B. Yes, because it is likely to be allowed to correct a false impression given by the woman.

C. Yes, because these offences are within the same category as fraud and help to establish the woman’s propensity to be dishonest.

D. No, because these convictions do not help to establish the woman’s propensity to be untruthful.
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E. No, because the court is likely to take the view that the admission of these previous convictions will have such an adverse effect on the fairness of the proceedings.

Answer 27

Option B is the correct answer because this accurately sets out the test for admissibility of a defendant’s bad character under gateway s.101(1)(f) CJA 2003. Here the defendant has given a false impression about her character by claiming to be an honest person. The 3 previous convictions will correct this false impression as dishonesty is a key element for an offence of theft.

Options A is not the best answer because a court is still likely to be able to understand the evidence in the case without hearing of these previous convictions, which in any event are unlikely to provide such important explanatory evidence.

Option C is wrong because fraud does not come within the Theft Act category of offences.

Option D is wrong because although it’s correct to say that the previous convictions do not help to establish her propensity to be untruthful, they are not being admitted to do this but to correct the false impression she has given whilst testifying.

Option E is wrong because the court cannot use s.101(3) to prevent evidence of bad character being admitted under gateway (f) and in any event it is unlikely a court would take the view that the admission of these previous convictions will have such an adverse effect.

Question 28

A defendant has been charged with supplying drugs to undercover police officers. The defendant has no criminal record and only supplied the drugs after the undercover officers supplied him with some cheap cigarettes and then used a lot of persuasion to get him to supply them with drugs in return. The undercover officers, who were only subject to minimal supervision, have video recorded evidence of the man supplying them with the drugs.

What would be the best approach for the defence to take in this case?

A. To enter a timely guilty plea in order to obtain the maximum sentencing discount, given the strength of the prosecution evidence.

B. To offer the prosecution a guilty plea to a lesser offence of possession only, given this case relied on entrapment evidence.

C. To rely on the defence of entrapment, given the involvement and the behaviour of the undercover police officers who were only subject to minimal supervision.

D. To challenge the admissibility of the evidence obtained by entrapment on the basis that it would have such an adverse effect on the fairness of the proceedings.
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E. To invite the court to exercise its common law power to stop the case on the basis that it would represent an abuse of the court process to allow such a prosecution case to continue.

Answer 28

Option E is the best answer. The facts in this case mirror the facts in the second case that was part of the combined appeal of R v Loosely; AG’s Reference No 3 of 2000 (2001) and the leading authority on abuse of process. In this case the House of Lords emphasised that there is no defence known as ‘entrapment’. Although it is possible to challenge the admissibility of such evidence under s 78 PACE 1984, the preferred approach is to invite the court to exercise its common law power to stop the case on the basis that it would represent an abuse of process to allow such a prosecution to continue.

Option A is not the best answer because although the defendant would receive credit for entering a timely guilty plea, the better approach would be to challenge the prosecution case as suggested above as this would produce the best outcome for the defendant.

Option B is not the best answer because although offering the prosecution a guilty plea to a lesser charge is sometimes the best outcome for a defendant, it would not be the case here.

Option C is wrong because there is no defence known as entrapment – see R v Sang (1980).

Option D is not the best answer for the reasons set out above.

Question 29

A man has been charged with an offence of robbery which he emphatically denies. It is alleged that the victim was threatened with a knife and forced to hand over their iPhone. The man denies having a knife and claims that it was the victim who threatened him. The man has a previous conviction for aggravated burglary where a knife was used to threaten the occupants of the premises and convictions for possession of a bladed article and threatening behaviour where it was alleged the man used the knife to threaten members of the public who were passing by. The man pleaded guilty to these offences.

Which of the following best describes the basis on which the prosecution will apply to adduce evidence of the man’s previous convictions?

A. That the man has a propensity to commit offences of the kind charged as the aggravated burglary is an offence of the same description and they all have significant factual similarities.

B. That the offences all have substantial probative value in relation to an important matter in issue. Namely the man’s use of knives to threaten his victims.
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C. That the offences provide important explanatory evidence and without it the court would find it very difficult to properly understand the case and the value of the evidence in understanding the case is substantial.

D. That the man has a propensity to commit offences of the kind charged as the aggravated burglary is in the same category and all of them have significant factual similarities.

E. That the man has made an attack on the character of another person by claiming that the victim was not telling the truth about him having a knife and that it was the victim who was the aggressor.

Answer 29

Option D is the best answer because this aspect of gateway (d) will be the best basis for the prosecution to adduce evidence of his previous convictions. The aggravated burglary is admissible under the same category of Theft Act offences and all of the convictions have significant factual similarities, namely threatening his victims with a knife.

Option A is wrong because although they all have significant factual similarities, aggravated burglary is not an offence of the same description as robbery.

Option B is wrong because this sets out the test for admissibility under gateway (e) which is only available to a co-accused, not the prosecution.

Option C is not the best answer because although gateway (c) is potentially available, the court is likely to conclude that the evidence is still understandable without hearing about these previous convictions.

Option E is not the best answer because a court is likely to take the view that all the defendant has done here is to make an emphatic denial of guilt – see R v Ball (2005).

Question 30

A defendant is standing trial in the magistrates’ court for an offence of theft from his employer. It is alleged by his employer that he stole items from his place of work. The defendant denies this allegation and claims that his employer has made up this false allegation as an excuse to dismiss him.

The defence are notified by the prosecution that the employer has two previous convictions for fraud by false representation which occurred three and four years ago.

Are the defence likely to be allowed to adduce the bad character evidence of the employer at trial?

A. Yes, because this evidence will have substantial probative value in relation to a matter in issue in the proceedings in order to show that the employer has told lies in the past.

B. Yes, because this evidence is of substantial importance in the context of the case as a whole as the employer has deceived people in the past.

C. No, because only bad character evidence from a defendant will be admissible where it has substantial probative value in relation to a matter in the proceedings and is of substantial importance in the context of the case as a whole.

D. No, because these offences do not provide the court with important explanatory evidence as the facts of the case can be understood without hearing of this evidence.
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E. Yes, because this evidence will have substantial probative value in relation to a matter in the proceedings and this is of substantial importance in the context of the case as a whole.

Answer 30

Option E is the best answer because this accurately sets out the test for admissibility of a non-defendant’s bad character under gateway s.100(1)(b) CJA 2003. Here the defence will want to adduce such bad character evidence to undermine the credibility of this person who will be the complainant in the case and also likely to be the key prosecution witness. Although the Court of Appeal has said on a number of occasions that whether convictions are persuasive as to creditworthiness depends on their nature, number and age, and it was not necessary for the conviction to demonstrate a propensity to untruthfulness, two previous convictions for fraud would clearly be relevant to the question of the employer’s credibility.

Options A and B are not the best answers because they only set out part of the test for admissibility under this gateway.

Option C is wrong because it is wrong to suggest that this is the test for admissibility of a defendant under s.101(1).

Option D is wrong because this sets out the test for admissibility of a non-defendant’s bad character under s.100(1)(a) which would not be relevant to this scenario.

Question 31

A road traffic accident occurs when a car collides with a stationary, parked vehicle. A passer by makes a note of the registration number of the vehicle that caused the collision before the vehicle left the scene. The passer by leaves the note attached to the windscreen of the damaged vehicle and the owner of the vehicle telephones the police to report the accident. The police make a record of the registration number of the vehicle responsible for causing the accident in their incident log. The note is subsequently lost and the passer by who wrote the note cannot be traced.

On what basis may the evidence of the registration number contained in the police incident log be admissible?

A. It is likely to be admissible as an exception to the hearsay rule as a business document as it was created by a police officer in the course of their occupation and the supplier of the note had first-hand knowledge of the matters contained in the original note.
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B. It will not be admissible as an exception to the hearsay rule because it was also made in contemplation of criminal proceedings and there is no available prescribed reason that the prosecution can rely on.

C. It is likely to be admissible as an exception to the hearsay rule in the interests of justice. The evidence would not otherwise be admissible and a court is likely to find that this evidence is substantial and reliable.

D. It will not be admissible as an exception to the hearsay rule under the interests of justice test because it has no probative value and the circumstances in which the statement was made makes it unreliable.

E. It will not be admissible as an exception to the hearsay rule because the maker of the note cannot be identified to the court’s satisfaction and there are no available prescribed reasons under the absence witness provisions.

Answer 31

Option C is the best answer. The facts in this scenario are very similar to the facts in Maher v DPP [2006] EWHC 1271 (Admin) and this was the High Court’s reasoning for why the evidence of the registration number in the incident log should be admissible under s.114(1)(d) CJA 2003. The court was satisfied that it satisfied the relevant factors contained in s.114(2) – specifically the probative value of the information in the log was substantial and in the court’s view it was reliable.

Option A is wrong because although the log was created by a police officer in the course of their occupation the supplier of the information was the passer by and not the owner of the damaged vehicle. The owner did not have first-hand knowledge of the matters contained in the original note, nor were they passing this information on as an intermediary in the course of their trade, business, profession etc.

Option B is wrong because although it was made in contemplation of criminal proceedings and there is no available prescribed reason that the prosecution can rely on, it may still be admitted under the interests of justice test, provided the court assesses and applies the criteria for admission under this exception contained in s.114(2).

Option D is wrong because although in principle such evidence would not be admissible where it has no probative value and the circumstances in which the statement was made makes it unreliable, this is not the case here according to Maher v DPP.

Option E is not the best answer, because although the maker of the note (the passer by) cannot be identified to the court’s satisfaction and there are no available prescribed reasons under the absence witness provisions contained in s.116(2), the evidence may still be admitted under the interests of justice test set out in s.114(1)(d).

Question 32

A woman has been arrested for theft. She is a drug addict and soon begins to suffer withdrawal symptoms and to feel very unwell. She tells this to the police who reply, “well, if you admit you stole the goods, we can release you straightaway”. The woman confesses to the theft and is released. The police intend to use the woman’s confession at trial.

Which of the following best reflects whether the woman’s confession will be excluded from the evidence given at trial?

A. The woman’s confession will not be excluded as it was freely given.

B. The woman’s confession will be excluded as she is a drug addict and therefore a vulnerable person.

C. The woman’s confession will not be excluded as the police have not acted oppressively.

D. The woman’s confession will be excluded as it is likely to be unreliable.

E. The woman’s evidence may be excluded as it is likely to be unreliable.

Answer 32

Option D is correct. The confession will be excluded as it is likely to be unreliable as the woman is suffering withdrawal symptoms and has received an inducement to confess by being told she will be released (s76 of the Police and Criminal Evidence Act 1984).

Option A is wrong as it is arguable whether the confession is ‘freely given’ and, even if it is, under the circumstances it is likely to be unreliable as explained above.

Option B is wrong as the crucial question is whether the confession is unreliable rather than whether the woman is a vulnerable person.

Although other protections may be needed to ensure that vulnerable persons have a fair trial, option B is not the best answer in relation to excluding the confession.

Option C is wrong as, under s76 PACE it is not necessary for the police to have acted oppressively and a trial could still be unfair where the police have not acted oppressively.

Option E is wrong as the court is under a duty to exclude unreliable evidence, it does not have a discretion.

Question 33

A defendant is on trial for theft. He is pleading not guilty and will raise the defence of alibi at trial. The defendant has two previous convictions for assault. On both occasions the defendant was convicted after pleading not guilty. On each occasion he testified, claiming that he was acting in self-defence.

Which one of the following statements best describes how the prosecution will seek to admit the man’s previous convictions for assault at trial?

A. Because it is evidence to correct a false impression given by the defendant.

B. Because the defendant has made an attack on another’s person’s character

C. Because it is relevant to an important matter in issue between the defendant and the prosecution.

D. Because the evidence is important explanatory evidence.

E. Because it would be unfair not to admit it.

Answer 33

Option C is correct. Under s.101(1) (d), the matter in issue between the prosecution and the defence includes the question whether the defendant has a propensity to be untruthful, The prosecution will be allowed to do this only if it is suggested that the defendant’s case is in any way untruthful (s.103 (1)(b)). This is clearly the case here as the D claims to have an alibi. In Hanson [2005], the CoA held that propensity to be untruthful can be demonstrated, if the D pleaded not guilty to the earlier offence but was convicted following a trial at which his account was disbelieved.

Option A is not the best option here. Bad Character can be admitted to correct a false impression given by the defendant under s.101 (1) (f) of the Criminal Justice Act (CJA). A defendant gives a false impression if he makes an express or implied assertion during the proceedings, or on being questioned or charged for the offence, which gives the court a false or misleading impression about him. There is nothing on the facts to suggest that here.

Option B is not the best option here. Bad Character can be admitted if the defendant makes an attack on another man’s character under s. 101 (g) CJA 2003. Royce (2008) confirmed that an allegation made by the defendant that he was acting in self – defence against an unprovoked attack by the complainant constituted such an attack since it was evidence that the complainant had behaved in a reprehensible way. However, s.106 (1) CJA makes it clear that the attack must occur during the proceedings or on being charged or questioned for the offence. There is nothing on the facts to suggest that here.

Option D is not the best option here. Bad Character can be admitted under s. 101 (c) CJA if the evidence is important explanatory evidence and without it the Magistrates would find it impossible or difficult to properly understand the case. There is nothing on the facts to suggest that here.

Option E is wrong. This is not an argument that the prosecution can raise to admit the defendant’s bad character but an argument the defence can raise to exclude any bad character evidence admitted.

Question 34

A man has been charged with possession of drugs. The drugs were found in the man’s home following an unlawful search conducted by the police. The police had no statutory or common law power to carry out the search and the man was also assaulted by a police officer during the course of the search.

Which of the following best describes whether the finding of the drugs is likely to be excluded as evidence at trial?

A. The evidence is likely to be excluded because the man was assaulted during the conduct of the illegal search.

B. The evidence is likely to be excluded because the police had no statutory or common law power to conduct the search.

C. The evidence is likely to be excluded because it was obtained unlawfully.

D. The evidence is not likely to be excluded because the breaches are unlikely to be regarded as significant and substantial.

E. The evidence is not likely to be excluded because relevant evidence will always be admissible.

Answer 34

Option D is the best answer because the breaches are unlikely to be regarded as ‘significant and substantial’ breaches of PACE 1984 and the Codes of Practice according to cases such as R v Keenan (1990). Although the police have acted unlawfully the drugs were always where they were found and the unlawful police actions didn’t bring them into existence. Here, relevance is likely to be the deciding factor in determining the question of admissibility rather than how they were found.

Options A, B and C are not the best answers because although the court does retain a discretion to exclude evidence under s.78 PACE 1984 where its admission would have such an adverse effect on the fairness of the proceedings, the existence of the drugs found in the man’s home is prima facie relevant and reliable evidence in relation to the offence charged.

Option E is not the best answer because although relevance is a very important factor for a court to take into account when determining admissibility of evidence, it is not the only factor.

Question 35

A defendant has been charged with theft. The prosecution case is that the defendant stole a purse belonging to the complainant which was in her shopping bag whilst she was in a supermarket. The main prosecution witness is a store detective who claims to have seen the defendant take the purse whilst the complainant was distracted, selecting items from a shelf.

The complainant provides a witness statement to the police in which she states that she did not see who took her purse, but discovered that it was missing when she got to the check-out and that no one had permission to take her purse. The complainant does not know the defendant.

The defendant does not dispute the complainant’s account of what happened, but denies that they were the person who took the purse.

Yes, because the complainant’s evidence will not otherwise be admissible if she does not attend court to testify.
Yes, because the complainant does not satisfy any of the absent witness exceptions that would allow her witness statement to be admitted in her absence.
No, because the defence do not dispute the complainant’s witness statement and should agree to it being read out in court without the complainant having to attend.
No, because the complainant’s witness statement is automatically admissible and will not be subject to the hearsay rule.
Yes, because the prosecution will be required to call the complainant to testify so that she can formally prove that her purse was stolen by someone.
Should the complainant will be required by the defence to attend court to testify in person?

A. Yes, because the complainant’s evidence will not otherwise be admissible if she does not attend court to testify.

B. Yes, because the complainant does not satisfy any of the absent witness exceptions that would allow her witness statement to be admitted in her absence.

C. No, because the defence do not dispute the complainant’s witness statement and should agree to it being read out in court without the complainant having to attend.

D. No, because the complainant’s witness statement is automatically admissible and will not be subject to the hearsay rule.

E. Yes, because the prosecution will be required to call the complainant to testify so that she can formally prove that her purse was stolen by someone.

Answer 35

Option C is the correct answer. The defence do not dispute the complainant’s account and so will not need to challenge the complainant. As part of effective and proper case management, the complainant’s witness statement should therefore be agreed in advance of the trial. The witness statement can then be admitted under the s.9 Criminal Justice Act 1968 procedure. The statement will then be read out in court in the complainant’s absence (as an exception to the hearsay rule).

Question 36

A woman is charged with assault occasioning actual bodily harm (triable either way). She pleads not guilty and wants her case heard before a jury. The magistrates indicate that the case is suitable for summary trial.

Which of the following best describes the sequence of events assuming the woman continues to want to elect trial by jury?

A. The case is immediately sent to the Crown Court.
selected

B. The woman may request an indication of sentence but maintain her not guilty plea. The woman elects trial by jury and the case is sent to the Crown Court.

C. The woman requests an indication of sentence but maintains her not guilty plea. Representations on allocation are made by the prosecution and defence. The magistrates decide whether the case should be referred to the Crown Court.

D. The woman requests an indication of sentence but maintains her not guilty plea. The woman elects trial by jury. The magistrates send the case to the Crown Court only if they feel their sentencing powers are insufficient.

E. The woman is not allowed to request an indication of sentence. She elects trial by jury and the matter is sent to the Crown Court.

Answer 36

Option B is correct. After the magistrates decide that the case is more suitable for summary trial and have explained that to the woman, the order of events is:

The woman may request an indication of sentence.
If the court agrees to do so (and having done so), it should ask the woman whether she wants to reconsider her plea.
Assuming the woman does not change her plea, the magistrates must ask her whether she consents to summary trial or wishes to be tried on indictment.
If she does not consent to summary trial, the case must be sent to the Crown Court for trial.
Option A is not the best answer. It does not fully describe the steps that will be taken before the matter is sent to the Crown Court.

Option C is wrong. Representations on allocation are made prior to the magistrates deciding whether the offence appears more suitable for summary trial. Having decided that the offence appears more suitable for summary trial, if the defendant nevertheless elects trial by jury, the matter must be referred to the Crown Court.

Option D is wrong. In considering whether to accept jurisdiction, the magistrates will have already considered the adequacy of their sentencing powers. Having decided that the offence appears more suitable for summary trial, if the defendant nevertheless elects trial by jury, the matter must be referred to the Crown Court.

Option E is wrong. The woman may request an indication of sentence, although the court may refuse to give one.

Question 37

A woman has consented to having her trial for assault occasioning actual bodily harm, dealt with at the magistrates’ court. She admits that she hit her boyfriend, with a frying pan, fracturing his cheek bone. The woman states that she hit her boyfriend in self-defence as she feared he was about to hit her, as he was very angry and had accused her of having an affair. The woman wants to call her boyfriend’s ex-girlfriend to give evidence. The ex-girlfriend will say that she was abused by the boyfriend over several years and that the boyfriend was convicted in relation to an assault on the ex-girlfriend two years ago and given a community order. The ex-girlfriend says that she is too scared to appear in open court and give evidence.

Which of the following options regarding the management of the ex-girlfriend’s evidence is correct?

A. If the woman wants to call the ex-girlfriend to give evidence, she must notify the court of her wish to call the ex-girlfriend once the prosecution has provided initial disclosure.

B. The magistrates will not allow the ex-girlfriend to be compelled to give evidence given her fear.

C. A section 9 witness statement should be served in relation to the ex-girlfriend’s evidence so that she does not need to attend.

D. The magistrates are not able to allow the ex-girlfriend special measures in the magistrates’ court, to allow her, for example, to give her evidence from behind a screen.

E. The CPS may choose to interview the ex-girlfriend but only if her statement is served.

Answer 37

Option A is correct. A defendant must serve on the Crown Prosecution Service a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence (s 6A Criminal Procedure and Investigations Act 1996.) The time limit for doing so running from the date on which the prosecutor complies with requirements for initial disclosure.

Option B is wrong. The ex-girlfriend’s attendance at court can be secured by way of a witness summons (Part 17 of The Criminal Procedure Rules).

Option C is wrong. The ex-girlfriend’s evidence is unlikely to be accepted by the victim. Section 9 should only be used where the evidence is uncontroversial.

Option D is wrong. Special measures can be provided in the magistrates’ court.

Option E is wrong. The defence don’t need to serve the statement and in any event the police can interview her if they comply with CPIA s21A.

Question 38

Two men have been charged with burglary. One of them admits that he acted as a look-out and intends to plead guilty to being an accomplice to the burglary when he appears in the Crown Court. This person is also prepared to give evidence for the prosecution implicating his co-accused, who he claims was responsible for carrying out the burglary.

Which of the following best describes whether this person will be a competent and compellable witness for the prosecution assuming that he is sentenced before the date of the trial of other man?

A. He is both competent and compellable because all persons are competent to give evidence and competent persons are also compellable.

B. He is both competent and compellable because he has pleaded guilty and so he has been severed from his co-accused.

C. He is competent to give evidence for the prosecution, but he cannot be compelled to do so as he is also a co-accused.

D. He is not competent to give evidence for the prosecution because he is still an accomplice even if he has pleaded guilty.

E. He is not competent to give evidence for the prosecution as he has a purpose of his own to serve in testifying for the prosecution.

Answer 38

Option B is the best answer. Although the general rule is that all persons are competent and compellable, this rule is subject to some important exceptions. One such exception is in relation to an accused, who is neither a competent nor compellable witness for the prosecution – see 53(4) YJCE Act 1999. However, this is subject to four exceptions, which are recognised by s 53(5), including where an accused is severed from their co-accused by pleading guilty. This means they can give evidence for the Crown against a co-accused (in such circumstances it is usually considered desirable that the accused is sentenced first before giving evidence). So, option B is correct and option D is wrong.

Option A is not the best answer because this only states the general rule and does not adequately explain why this person has become competent and compellable.

Option C is wrong because once this person becomes competent, he also becomes compellable.

Option E is wrong as the person is now competent. If he did have a purpose of his own to serve in testifying against his co-accused, this would not stop him from being a competent witness, but it may require the judge to give a warning to the jury to treat his evidence with some caution (this is known as a corroboration warning but is beyond the SQE1 syllabus).

Question 39

A solicitor is representing a client at the magistrates’ court for a trial before a bench of magistrates. The prosecution evidence was heard over one full day. The client gave evidence in their own defence and also called two other witnesses. The magistrates are about to retire to consider their verdict and the client asks the solicitor what the function of the legal advisor is at that stage in the case.

Which of the following statements best describes the function of the legal adviser at this stage of the trial?

A. The legal advisor will be able to remind the magistrates of the evidence given in the case, having taken a note of the evidence.

B. The legal advisor will participate in discussions between the magistrates and make their opinion known on their view as to verdict.

C. The legal advisor will assist the magistrates in the formulation of the reasons for their decision before the legal advisor announces the verdict.

D. The legal advisor may only advise the magistrates on any question of law. Questions of mixed law and fact and matters of practice and procedure are to be left to the magistrates.

E. The legal advisor may address the magistrates on the law in open court but they are not permitted to join them outside the courtroom.

Answer 39

Option A is the best description. The legal advisor can remind the magistrates of the facts of the case as they have kept a note during the hearing.

Option B is wrong. The legal advisor should not influence the decision of the magistrates on their verdict.

Option C is wrong. The legal advisor will assist the magistrates in the formulation of their reasons but they will not deliver the verdict. It is the role of the magistrates to do so.

Option D is wrong. The legal advisor can advise on questions of law and practice.

Option E is wrong. The legal advisor can join the magistrates outside the courtroom if the magistrates requests their attendance.

Question 40

A man is charged with robbery. His defence is that at the time of the robbery he was at home with his wife. The police take a statement from his wife in which she confirms that she was not at home at the relevant time and was in fact visiting her mother in hospital. The man’s wife is prepared to testify on behalf of the prosecution.

Can the prosecution call the man’s wife to testify for them at the man’s trial?

A. Yes, because the man’s wife is both competent and compellable to testify for the prosecution.
selected

B. Yes, because the man’s wife is competent to testify for the prosecution, even though she is not compellable.

C. Yes, because the man’s wife is compellable to testify for the prosecution.

D. No, because the man’s wife is neither competent nor compellable to testify for the prosecution.

E. No, because the man’s wife is not competent to give evidence for the prosecution.

Answer 40

Option B is the correct option. The wife, as the man’s spouse, is competent to give evidence on behalf of the prosecution (s.80 PACE 1984), although she cannot be compelled to do so.

Option A is wrong because although the man’s wife is competent to give evidence on behalf of the prosecution she cannot be compelled to do so (s.80 PACE 1984).

Option C is wrong because the man’s wife cannot be compelled to give evidence against her husband (s.80 PACE 1984).

Option D is wrong because the man’s wife is competent to give evidence against him but is not compellable to do so (s.80 PACE 1984).

Option E is wrong because the man’s wife is competent to give evidence against him (s.80 PACE 1984).

Question 41

A woman aged 23 years, has been charged with burglary and her case will be heard in the Crown Court. The prosecution case is that she broke into a couple’s house whilst they slept and stole silverware, later found at her home. The woman denies the offence and says that she was at home, in the company of a man she met that evening, at the time the offence took place. She has not been able to identify or contact the man since. She has four previous convictions for Theft Act offences. These prior offences were committed when the woman was a juvenile and under the influence of an abuser.

Which of the following best describes the woman’s obligations in relation to her defence statement?

A. The woman does not have an obligation to serve a defence statement as the offence is an either way offence.

B. If the woman serves a defence statement, she must update it if she is able to find and identify the man, she was in the company of at the time the offence took place.

C. The woman cannot apply for further time to serve her defence statement on the basis of complex arguments as to the admissibility of her previous convictions.

D. The woman’s lawyers must, when drafting a defence statement, ask the Crown Prosecution Service if a schedule of sensitive materials has been prepared.

E. If the woman does not serve a defence statement, then the Prosecution will automatically be able to make submissions allowing the court to draw adverse inferences about this failure.

Answer 41

Option B is correct as there is a continuing duty to update the defence statement with the name, address, and date of birth of any alibi witness as known to the defendant.

witness, or as many of these details as are known to the defendant.

Option A is wrong as the defendant should serve a defence statement in any Crown Court case.

Option C is wrong as an application to extend time can be made if the matter is particularly complex.

Option D is wrong as whilst it is best practice for a defendant’s lawyers to, when drafting a defence statement, ask the Crown Prosecution Service if a schedule of sensitive materials has been prepared, it is not mandatory.

E: wrong: the prosecution must be given leave of the court to make submissions on adverse inference.

Question 42

A woman is charged with assaulting a girl aged 17 at the woman’s daughter’s school. The woman’s husband witnessed the incident. The husband did not become involved in the physical altercation and is not co-accused of an assault on the girl. The husband does not want to give evidence at trial.

Which of the following statements correctly describes the husband’s competence and compellability at the trial of the woman?

A. He is not competent for the woman.

B
He is competent and compellable for the woman.

C. He is competent and compellable for the prosecution.

D. He is not competent for the prosecution.

E. He is competent but not compellable for the woman.

Answer 42

Option B is the correct answer. The husband of an accused is competent to give evidence on behalf of the accused (section 80 PACE 1984). He is also compellable as he is not a co-accused.

Option A is wrong because a spouse is competent for the accused.

Option C is wrong because the spouse of an accused is competent to give evidence for the prosecution but not compellable, apart from when a limited number of exceptions apply. One exception is when the offence charged involves an assault on a person who was at the material time under 16 (section 80(2A) & (3) PACE 1980). However, the girl who was assaulted is 17, so the husband is not compellable for the prosecution.

Option D is wrong because a spouse is competent for the prosecution and can give evidence for the prosecution if they choose to do so.

Option E is wrong because a spouse who is not a co-accused is both competent and compellable for the accused.

Question 43

At his trial, the defendant does not raise any facts in his defence and remains silent. A transcript of his police interview, at which he sought to answer all questions put to him, has been tendered into evidence.

Which of the following best describes when the court is entitled to draw an adverse inference?

A. When the court is satisfied that there is a case to answer.

B. When there is evidence other than the defendant’s silence on which a finding of guilt can be made.

C. When the court is satisfied that there is a case to answer and that the only sensible explanation for the defendant’s silence is that he had no answer, or none that would have stood up to cross-examination.

D. When there is evidence other than the defendant’s silence on which a finding of guilt can be made, and the only sensible explanation for the defendant’s silence is that he had no answer or none that would have stood up to cross-examination.

E. When the court is satisfied that there is a case to answer, there is evidence other than the defendant’s silence on which a finding of guilt can be made, and the only sensible explanation for the defendant’s silence is that he had no answer or none that would have stood up to cross-examination.

Answer 43

Option E is the best answer because courts should take into account all three matters listed in this option when considering the application of section 35 of the Criminal Justice and Public Order Act which allows an adverse inference to be drawn should the defendant remain silent at trial (R v Cowan).

Accordingly, none of the other options represent the best answer as the matters listed in them are not as comprehensive as option E.

Question 44

A client is charged with three separate offences of theft and is due to appear before the magistrate’s court for sentence today. In addition to the three theft offences (for which he has been charged) the client has also asked for two other offences of theft to be taken into consideration. The client will plead guilty to the three offences (for which he has been charged) at the first opportunity. The client asks his solicitor to advise him on how the magistrates will deal with the offences taken into consideration at his sentencing hearing today.

Which of the following statements best describes the way in which the magistrates will deal with the offences taken into consideration at the client’s sentencing hearing?

A. The magistrates will take account of the offences to be taken into consideration when identifying the starting point and the category range within the definitive sentencing guidelines.

B. The magistrates will take account of the offences to be taken into consideration after identifying the starting point and the category range within the definitive sentencing guidelines and, will treat the offences to be taken into consideration as an aggravating factor.

C. The magistrates will not consider the offences to be taken into consideration at all during the sentencing hearing and, will proceed to sentence the client only for the three offences for which he has pleaded guilty.

D. The magistrates will consider the offences to be taken into consideration at the very start of the sentencing hearing, before identifying the starting point and the category range within the definitive sentencing guidelines.

E. The magistrates will take account of the offences to be taken into consideration when they consider whether to give the client a discount for his early guilty plea. As the defendant has asked the court to take two offences into consideration, he will not be entitled to any discount for his early guilty plea.

Answer 44

Option B is the correct answer, as the magistrates will identify the starting point and the category range for the sentence first, without considering the offences to be taken into consideration. The magistrates will then look at the offences to be taken into consideration as an aggravating factor of the offence, the effect of which could justify an upwards adjustment from the starting point.

Option A is wrong, as the magistrates do not consider the offences to be taken into consideration when identifying the starting point and the category range within the definitive sentencing guidelines. They will treat the offences to be taken into consideration as an aggravating factor – please see the explanation for Option A above.

Option C is wrong. The magistrates will consider the offences to be taken into consideration when deciding what sentence to pass – please see the explanation for option B above.

Option D is wrong. The magistrates will not consider the offences to be taken into consideration at the start of the sentencing hearing. They will consider the offences to be taken into consideration after identifying the starting point and the category range of the offence. The offences to be taken into consideration will be treated as an aggravating factor – please see the explanation for Option B above.

Option E is wrong. As the defendant has pleaded guilty at the first opportunity, he is entitled to a one-third discount for his early guilty plea. The fact that he has asked for two offences to be taken into consideration will not have an impact on that discount.

Question 45

The defendant appears in magistrates’ court charged with theft. The defendant has 5 previous convictions for theft. He is an 80-year-old, Class A drug user and is stealing to support his habit. The defendant has pleaded guilty at the earliest opportunity.

Which of the following is correct in relation to what the court will consider when sentencing the defendant?

A. Every court has a duty to follow any relevant sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so.

B. As the defendant has previous convictions, the court do not have to consider the sentencing guidelines. He will automatically qualify for a custodial sentence.

C. The court will take into consideration his early guilty plea. As he pleaded guilty at the earliest opportunity, he will receive ¼ reduction in any sentence passed.
selected

D. The court will consider the age of the defendant to be an aggravating factor as he is elderly and should know better.

E. When sentencing the defendant, the court’s only purpose is to protect the public.

Answer 45

The correct answer is option A. This is covered in the SQE1 Manual at 11.2.1.

Option B is wrong. As covered in option A- the sentencing guidelines must be considered unless there is reason to depart from them. The presence of previous convictions is not a reason to immediately impose a custodial sentence, but it is an aggravating factor that should be considered.

Option C is wrong. Credit for an early guilty plea entered at the first available opportunity is 1/3 not ¼.

Option D is wrong. The age of a defendant (where they are particularly old (or young)), is a mitigating factor not an aggravating factor.

Option E is wrong. When sentencing a defendant, the court must take into consideration the protection of the public but also punishment of the offender, reduction of crime, rehabilitation of the offender and the making of reparation by an offender to persons affected by their offence. This is covered in Part 4, Ch. 1 of Sentencing Code 2020.

Question 46

A man was convicted of assault two months ago in the magistrates’ court. He received a suspended sentence order of four months’ custody. The operational period of the suspended sentence is 12 months. A requirement to complete 100 hours of unpaid work was attached to the suspended sentence order and the man has completed the unpaid work.

The man has now been convicted in the magistrates’ court of a non-imprisonable driving offence committed one month ago.

Can the magistrates’ court activate the sentence of imprisonment?

A. Yes, because the man has committed an offence during the operational period of the suspended sentence order.

B. No, because the new offence is non-imprisonable.

C. No, because the man has completed the requirement attached to the suspended sentence order.

D. No, because the operational period of the suspended sentence order is still running.

E. Yes, because the man has committed an offence within the four month period of custody imposed.

Answer 46

Option A is correct. The triggering of a suspended sentence of imprisonment is not dependent on the more recent offence being an imprisonable offence and so option B is wrong. Here the more recent offence which triggers the suspended sentence has been committed during the operational period of the suspended sentence order, and so option D is also wrong for this reason.

Option C is wrong because completing any requirements attached to a suspended sentence order does not prevent the triggering of a suspended sentence where a further offence is committed during the operational period of the suspended sentence order.

Option E is wrong because the triggering of the suspended sentence order is not dependent on the length of the suspended sentence order but on the length of the operational period of the suspended sentence.

Question 47

A defendant in the Crown Court has pleaded guilty to an offence of assault occasioning actual bodily harm. The factual version of the offence put forward by the prosecution is that the victim’s injuries were caused by the defendant punching the victim three times in the face before then kicking the victim several times with their boot whilst the victim lay on the floor.

The defendant’s version of the events is that the victim’s injuries were caused by defendant pushing the victim to the floor. The defendant denies punching or kicking the victim at any stage. The difference between the prosecution and the defence version of events is significant and will affect the type of sentence the court will impose.

Which of the following statements best describes how the court will determine the factual basis on which to sentence the defendant?

A. The court will sentence the defendant on the basis of the facts put forward by the prosecution because the court must always accept the prosecution version of events.

B. The court will sentence the defendant on the basis of the facts put forward by the defendant because the court must always accept the defendant’s version of events.

C. The court will sentence the defendant on the basis of the facts determined by a jury after allowing the prosecution and defendant to call evidence.

D. The court will sentence the defendant on the basis of the facts determined by the sentencing court after hearing submissions from the prosecution and defence advocates.
selected

E. The court will sentence the defendant on the basis of the facts determined by the sentencing court after allowing the prosecution and defendant to call evidence.

Answer 47

Option A is wrong. Where there is a dispute on the factual basis of the offence and the dispute may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the prosecution and the defendant to call evidence so that the sentencing court can determine the true factual circumstances of the offence. The court is not required to accept the prosecution version. Manual Chapter 11.

Option B is wrong. Where there is a dispute on the factual basis of the offence and the dispute may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the prosecution and the defendant to call evidence so that the sentencing court can determine the true factual circumstances of the offence. The court does not always have to accept the defendant’s version of events. Manual Chapter 11.

Option C is wrong. Where there is a dispute on the factual basis of the offence and the dispute may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the prosecution and the defendant to call evidence so that the sentencing court can determine the true factual circumstances of the offence. This is required when the correct factual version of events will affect the type of sentence the court will impose. The trial of the facts will be conducted by the sentencing court, not by a jury whose role in a trial is to determine the guilt or innocence of a defendant. Manual Chapters 10 and 11.

Option D is wrong. Where there is a dispute on the factual basis of the offence and the dispute may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the prosecution and the defendant to call evidence so that the sentencing court can determine the true factual circumstances of the offence. This is required when the correct factual version of events will affect the type of sentence the court will impose. The sentencing court will therefore determine the facts after hearing evidence rather than relying on the advocates’ submissions. Manual Chapter 11.

Question 48

A defendant is given a suspended sentence in the Crown Court.

Which of the following sentences can be imposed?

A. Seven days suspended for six months.

B. Three years suspended for one year.

C. 14 days suspended for three months.

D. Two years suspended for two years.

E. Six months suspended for three years.

Answer 48

Option D is correct as a custodial sentence of at least 14 days but no more than two years may be suspended for between six months two years in the Crown Court. The period of suspension is known as the operational period. A two-year sentence suspended for two years is therefore just within those limits.

Option A is wrong because a seven-day sentence is too short to be suspended.

Option B is wrong because a three-year sentence is too long to be suspended.

Option C is wrong because a three-month suspension is too short an operational period.

Option E is wrong because a three-year suspension is too long an operational period.

Question 49

A 15 year old youth pleaded not guilty in the youth court to an offence of criminal damage to a neighbour’s detached garage. At the trial, the youth was found guilty. The youth lives at home with his parents and does not have any previous reprimands, final warnings, youth cautions or previous convictions. The complainant seeks £150 compensation in respect of the damage to his garage. The prosecution seeks a contribution towards prosecution costs of £80.

In respect of orders which the youth court can make upon a finding of guilt, which of the following statements is correct?

A. The youth court cannot order a conditional discharge because the youth is only 15 years of age.

B. The youth court can make a referral order.

C. The youth court can order a fine but as the youth is only 15 years of age, it must order that the fine be paid by the parents.

D. The youth court can make a compensation order which must be paid by the youth himself.

E. The court can order that the youth makes a contribution towards prosecution costs and this is subject to a maximum figure of £100.

Answer 49

C is the correct answer because the youth court can impose a fine on a youth aged under 16 but it must order that the fine be paid by the parents.

A is wrong because the youth court has the power to order a conditional discharge for a youth in the same way as the magistrates’ court may for an adult offender.

B is wrong because a referral order must be made for a youth who pleads guilty to an offence which carries a possible custodial sentence and where the youth has not previously been convicted or bound over, here the youth did not plead guilty.

D is wrong because the youth court can make a compensation order but it will be payable by the parents and not the youth as he is 15 years of age.

E is wrong because the youth court can order a defendant to make a contribution towards prosecution costs but it is not subject to any maximum figure.