SQE Criminal Practice Flashcards
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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)).
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.
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’.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
