Unit 5 - Case Management, Pre-Trial Hearings and Trial Procedure in Magistrates’ and Crown Courts. Flashcards
A solicitor is representing a defendant at his first appearance in the magistrates’ court.
The defendant has been charged with offences of rape (an offence that can only be tried on indictment) and sexual assault (an either-way offence). It is alleged that he sexually assaulted the victim before he then raped her the following week. The defendant intends to plead not guilty to both allegations.
Will both offences be sent to the Crown Court for trial?
A) Yes, because the defendant is pleading not guilty to both allegations.
B) No, because the sexual assault allegation can only be tried in the magistrates’ court.
C) No, because the defendant may elect trial for both allegations in the magistrates’ court or the Crown Court.
D) Yes, because the sexual assault allegation is related to the rape allegation which must be sent to the Crown Court for trial.
E) Yes, because the sexual assault allegation is punishable with imprisonment and is related to the rape allegation which must be sent to the Crown Court for trial.
CORRECT ANSWER D - This is because rape is an offence triable only on indictment and sexual assault is an either-way offence. Where an adult appears before a magistrates’ court charged with an offence triable only on indictment, the court must send the defendant to the Crown Court for trial pursuant to s 51(1) of the CDA 1998 for that offence; and for any either- way offence (or summary offence) with which they are charged which fulfils the ‘requisite conditions’. Here the ‘requisite conditions’ are that the either-way offence appears to the court to be related to the offence triable only on indictment. Given that both allegations relate to the same victim and they are alleged to have taken place within a week of each other, they will be regarded as related to each other. Although sexual assault is also an imprisonable offence, option E is not the best answer because this is only a requirement for a summary-only offence. Option A is not the best answer, because the defendant will not be asked to indicate his plea to either of these matters in this case (he would have been asked to indicate his plea to the allegation of sexual assault if he had not also been charged with rape, an offence
that can only be tried on indictment). Option B is not correct as sexual assault is an either- way offence. Option C is not correct because rape is not an either-way offence and so he will never be given the choice to elect where his trial takes place.
A defendant has been charged with an offence of burglary that took place at office premises in the city centre. As part of the investigation the police have a witness statement from a neighbour of the defendant claiming she saw the defendant in his back garden
at the time the burglary took place. However, she tells the police that she is not prepared to give evidence about this as she does not like her neighbour. The prosecution does not believe the neighbour is telling the truth and does not intend to call her as a witness at the defendant’s trial in the magistrates’ court.
Which of the following best describes whether the prosecution will be required to disclose the existence of the neighbour’s witness statement to the defence?
A) The prosecution will be required to disclose this material as part of the initial details of the prosecution case.
B) The prosecution will not be required to disclose this witness statement because the trial is taking place in the magistrates’ court and not the Crown Court.
C) The prosecution will be required to disclose this witness statement because it provides the defendant with an alibi defence.
D) The prosecution will not be required to disclose this witness statement because it is sensitive material and subject to public interest immunity as the neighbour does not want to testify at trial.
E) The prosecution will be required to disclose this witness statement because it might reasonably be considered capable of undermining the case for the prosecution.
CORRECT ANSWER E - Section 3 CPIA 1996 provides that such unused material must be disclosed to the defence if it ‘might reasonably be considered capable of undermining the case for the prosecution’. Arguably this witness statement might also reasonably be considered capable of assisting the case for the accused, but we are not told what defence the defendant is raising and, in any event, this is not one of the options available. Option
A is not correct because this witness statement will not be provided as IDPC, as we are told the prosecution will not be calling this witness to give evidence. The obligation to disclose unused prosecution material applies to trials in the magistrates’ court and Crown Court, so option B is not correct. Option C is not the best answer, because although this may support the defendant’s defence of alibi, we do not know whether the defendant is raising such a defence and in any event, this does not set out the test for disclosure in s 3. Option D is not correct because a witness’s unwillingness to testify does not make it sensitive material that may be eligible for a public interest immunity application.
A man is facing trial in the Crown Court for an offence of wounding. The prosecution has provided disclosure of their non-sensitive, unused material which might reasonably be considered capable of undermining their case or of assisting the case for the defendant.
What obligation, if any, is now on the defendant to make disclosure of his defence to the prosecution?
A) The defendant is required to serve a defence statement. This obligation will be enforced by the court by drawing an adverse inference against the defendant if the statement is not provided.
B) The defendant may serve a defence statement but cannot be obliged to do so. Failure to provide the statement means the prosecution will not be required to review their initial disclosure and determine if there is any further relevant unused material in its possession.
C) The defendant is not required to serve a defence statement on the prosecution as this would violate the defendant’s right to a fair trial and his presumption of innocence.
D) The prosecution cannot insist on the defendant providing a defence statement, but the court is likely to make an award of costs against the defendant for failing to provide one.
E) The defendant is not required to serve a defence statement but there are good tactical reasons for serving one. This includes placing an obligation on the prosecution to then provide disclosure of their sensitive, unused material.
CORRECT ANSWER A - Section 5 of the CPIA 1996 sets out the obligation on the defence to provide a defence statement. This is referred to as ‘compulsory disclosure’ where a defendant is facing trial in the Crown Court (as opposed to the magistrates’ court where there is no such obligation). This obligation is enforced in the Crown Court by the court being able to draw an adverse inference against the defendant if a defence statement is not provided.
Option B is wrong, although this would be correct if the man’s trial were taking place in the magistrates’ court. Option C is wrong because the obligation to provide a defence statement does not violate his right to a fair trial, nor his presumption of innocence. Option D is correct to the extent that the prosecution cannot insist on the defendant providing a defence statement, but the court would not make an award of costs against the defendant for failing to do so. Option E is wrong because the defendant is required to serve this statement. Moreover, this would not trigger an obligation on the prosecution to then provide disclosure of their sensitive, unused material. Such material will never be disclosed if the prosecution makes a successful public immunity interest application to withhold its disclosure.
A solicitor is representing a defendant at trial in the magistrates’ court on a charge of assault occasioning actual bodily harm. When testifying, the complainant states that she was punched by the defendant following an argument but she did not give any evidence about the nature of her injuries and the prosecution did not adduce any medical evidence to establish what injuries she suffered. No other prosecution evidence is adduced to establish the complainant did suffer actual bodily harm although there is independent evidence to help prove the defendant did punch the complainant.
Will the defence be likely to succeed in a submission of no case to answer at the end of the prosecution case?
A Yes, because the evidence produced by the prosecution is so manifestly unreliable, that no reasonable tribunal could safely convict on it.
B No, because the prosecution has produced direct and independent evidence that the complainant was assaulted.
C No, because the complainant has testified to say that she was assaulted by the defendant.
D Yes, because the prosecution has failed to put forward evidence to prove an essential element of the alleged offence.
E No, because there is circumstantial evidence to help prove that an assault took place.
CORRECT ANSWER D - According to the test in R v Galbraith, a submission of no case to answer should succeed where either the prosecution has failed to put forward evidence to prove an essential element of the alleged offence, or the evidence produced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it. We are told that the prosecution has adduced evidence that there was an assault and there is nothing to suggest that this evidence is manifestly unreliable, so option A is wrong. However, the prosecution does not appear to have adduced any evidence that the complainant suffered actual bodily harm as a result of this assault. So, option D is the correct explanation as to why a submission ought to succeed.
Options B and C are therefore wrong because these explanations would only help prove one element of the offence and not that the victim suffered actual bodily harm from
the assault. Option E is wrong because although circumstantial evidence is capable of establishing a case to answer, we are not told about any such evidence in this case.
Three defendants have been charged with robbery. One defendant, a woman, admits that she acted as a look-out and intends to plead guilty to being an accomplice to the robbery when she appears in the Crown Court. This woman is also prepared to give evidence for the prosecution implicating her co-accused, who are both men and whom she claims were responsible for carrying out the robbery.
Which of the following best describes whether the woman will be a competent and compellable witness for the prosecution assuming that she is sentenced before the date of the trial of the two men?
A) The woman is both competent and compellable because she has pleaded guilty and so she has been severed from her co-accused.
B) The woman is both competent and compellable because all persons are competent to give evidence and competent persons are also compellable.
C) The woman is competent to give evidence for the prosecution, but she cannot be compelled to do so as she is also a co-accused.
D) The woman is not competent to give evidence for the prosecution because she is still an accomplice even if she has pleaded guilty.
E) The woman is not competent to give evidence for the prosecution as she has a purpose of her own to serve in testifying for the prosecution.
CORRECT ANSWER A - 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) YJ&CE 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 A is correct and option D is wrong.
Option B is not the best answer because this only states the general rule and does not adequately explain why the woman has become competent and compellable. Option C
is wrong because once the woman becomes competent, she also becomes compellable. Option E is wrong as the woman is now competent. If she did have a purpose of her own to serve in testifying against her co-accused, this would not stop her from being a competent witness, but it may require the judge to give a warning to the jury to treat her evidence with some caution (this is known as a corroboration warning but is beyond the SQE1 syllabus).
A solicitor represented a new client in the magistrates’ court at a trial for burglary. The prosecution case was on the basis that the defendant was someone of good character. The magistrates convicted the defendant. After the trial, the client instructs her solicitor that she wants to appeal against her conviction. The client also confides in her solicitor by telling him that the police got her name wrong when they charged her. Had she been prosecuted under her correct name the prosecution would have discovered that she had a number of previous convictions for dishonesty offences including three similar offences for burglary. The client is adamant that she does not want the court or the prosecution to learn of her correct name.
What should the solicitor now do in light of this information?
A) The solicitor can continue to act for the client, but he must not make any reference to the client’s name or her good character at the appeal hearing.
B) The solicitor can continue to act for the client as he has an overriding duty to act in the client’s best interests.
C) The solicitor should withdraw from acting for the client, but he cannot tell the court or the prosecution why.
D) The solicitor should withdraw from acting for the client because he has breached his overriding duty to the court.
E) The solicitor should withdraw from acting for the client and must inform the court of the client’s true name otherwise he will be complicit in misleading the court.
CORRECT ANSWER C - The solicitor can no longer act for the client because to do so would be knowingly misleading the court now that the solicitor is aware of the client’s true name. However, the solicitor could not tell the court or the prosecution why, because to do so would be breaching his duty of confidentiality to the client.
Option A is wrong because the solicitor would have to give the client’s name to lodge an appeal and would also be misleading the court when appealing under a false name. Especially so in a case like this where the prosecution would have been likely to make a bad character application had they known of the client’s correct name. Option B is wrong, because although it is correct to say that the solicitor has a duty to act in the client’s best interests, this is not his overriding duty. Option D is wrong, because although his overriding duty is to the court, the solicitor has not yet breached this as he was unaware of the client’s true name at the time of the trial. However, the solicitor would now breach it if he continued to act for the client knowing that the court and prosecution will be misled at the appeal. Option E is wrong, because if the solicitor tells the court why he is withdrawing, he will be breaching his duty of confidentiality to the client.
Going back to Jayden, let us imagine that Jayden was charged with assault occasioning actual bodily harm on Kimberly. In this updated scenario, Jayden caused Tina a fractured nose’s when he punched her, and the magistrates’ court declined jurisdiction.
Which of the following best describes what would need to be included in Jayden’s defence statement in the Crown Court?
A) Jayden would not have to admit to having punched Kimberly because it is the Prosecution that must prove all elements of an offence.
B) Jayden would have to raise the issue of self-defence so that he could prove to the jury that he was acting in self-defence.
C) Jayden would not have to admit presence at the scene of the assault because it is the Prosecution that must prove all elements of the offence.
D) Jayden would have to admit that he hit Kimberly so that he could raise the issue of self-defence. He would not have to admit that he caused Kimberly a fractured nose.
E) Jayden would have to admit that he hit Kimberly and cause her a fractured nose in order to raise the issue of self-defence.
CORRECT ANSWER D - Once Jayden has raised the issue of self-defence, it is for the Prosecution to disprove that Jayden acted in self-defence.
Option A is not the best answer, because although it is technically correct that Jayden does not have to admit that he hit Kimberly at all, if he does not do so, he cannot raise the issue that he only hit her in self-defence. Although, the burden is on the Prosecution to prove that Jayden did not act in self-defence, that burden only arises once Jayden has raised it. If Jayden does not accept hitting Kimberly, self-defence will not have been raised.
Option B is wrong because although Jayden must raise the issue, he is not required to prove that he acted in self-defence.
Option C is technically correct, but as with answer A, if Jayden does not admit presence at the scene, he cannot raise self-defence.
Option E is wrong because whilst Jayden must admit that he punched Kimberly in order to raise self-defence, he does not have to admit that this punch caused a fractured nose. Jayden is unlikely to know whether the punch caused such injury or not. It is for the Prosecution to prove each element of the offence of assault occasioning actual bodily harm. Section 47 of the Offences Against The Person Act states that actual bodily harm must be occasioned for the offence to be made out by the Prosecution. Jayden does not have to accept that the punch caused a fractured nose without evidence to that effect. Therefore, Jayden must only raise the fact that he hit Kimberly in self-defence. So D is correct.
In which of the following cases is a case most likely to be adjourned by a court on the day of trial?
A) The victim of an assault has not attended because they are scared to give evidence.
B) The witness to a robbery died 6 months before the trial and no hearsay notice has been served.
C) The defendant has failed to attend court because they do not want to be remanded into custody.
D) The defence failed to serve an alibi notice and the defendant wishes to rely on the witness at trial.
E) The prosecution failed to tender a witness to the defence, upon whom the defence wish to rely.
CORRECT ANSWER E - The court is unlikely to adjourn a case simply because a victim does not want to give evidence. The prosecution is likely either to have to discontinue the assault case or make sure that the witness does attend. Ultimately, if a summons for the victim’s attendance has been obtained and the victim refuses to attend, the court can issue a warrant for the victim’s arrest and the victim can be forced to come to court. So, option A is wrong.
Option B is wrong because although the hearsay notice has not been served, the prosecution could serve the notice out of time and ask for an extension. If the court refuse, the prosecution will simply not be able to rely on that witness.
Option C is also wrong. If the defendant fails to attend, the court may issue a warrant for the defendant’s arrest. Even if the defendant is not arrested, the court is very likely just to proceed in their absence. The defendant will be considered to have voluntarily absented themself from the court process. As you will recall from the magistrates’ courts preparation form, the defendant will have been advised that if they do not attend court the trial could take place in their absence. Rule 24.12 of the CPR states that the court must normally proceed as it the defendant were present. Therefore, the trial will likely take place with the defendant unable to give evidence. The court can convict or acquit the defendant in their absence.
Option D is wrong. If the defence wish to call an alibi and have not given notice, the case is unlikely to be adjourned. If the alibi witness attends, the court will probably allow them to give evidence. However, the prosecution is likely to be allowed to comment on the failure of the defendant to disclose the details of the alibi. An inference as to guilt may be drawn by the court or jury by so doing. The court is most likely to adjourn the case where the prosecution has failed to provide details of an important witness or tendered the witness to the defence. In this case it is the prosecution’s failure, but if the case were to proceed it would be the defendant who would suffer. The defendant would not be able to rely on that witness.
The overriding rule of the CPR that the process should be fair to both parties would be undermined in this situation. So E is the best answer.
You can see from this question that the court will be extremely reluctant to adjourn trials.
Which of the following statements concerning defence statements is correct?
A) The provision of a defence statement in the Crown Court is not a mandatory requirement, but the jury may draw an inference from a defendant’s failure to complete and sign one.
B) A defence statement need not indicate any points of law that the defendant wishes to take at trial.
C) Once a defence statement is signed, the defence are under no duty to update the defence statement if the details given within it change before trial.
D) A defence statement in not deemed to have the authority of the defendant until the defendant adopts it in evidence.
E) A defendant cannot give a defence statement in the magistrates’ court.
CORRECT ANSWER A - Whilst a defendant is normally expected to provide a defence statement, the Crown Court cannot enforce it and the defence may proceed to trial without one. However, the court will almost certainly allow an inference to be drawn from the defendant’s failure to serve a defence statement.
Option B is wrong, because if a defence statement is served, it must contain any points of law on which the defence propose to rely. Failure to do so may mean that these points cannot be argued at trial or delays incurred by the defence failure to include those points may have cost implications.
Option C is wrong, because the defence do have a duty to update the defence statement if details given in it change before trial. If a defendant gives different evidence in court to their unrevised defence statement, an inference will almost certainly be drawn.
Option D is wrong because the defence statement does have the authority of the defendant unless it can be proved otherwise. If, for example, a defendant were to state that they did not sign the defence statement and had never seen it, they would have to prove that to the court.
Option E is wrong because a defendant can give a defence statement in the magistrates’ court. It is not obligatory, and no inference will be drawn from a defendant’s failure to serve one. However, there may be cases where the defence wish the prosecution to produce unused material or make further enquiries. In these circumstances, a defendant may well wish to serve a defence statement.
A defendant is charged with fraud. He has given a not guilty indication of plea and elected Crown Court trial. His case has been sent to the Crown Court under section 51 of the Crime and Disorder Act 1998. In discussions with his solicitor, the defendant indicates that he is now thinking about a guilty plea but is worried about the length of custodial sentence he is likely to receive if he does so.
At the forthcoming PTPH, which one of the following will the Crown Court NOT do?
A) Arraign the Defendant
B) Hear oral evidence from the prosecution witnesses about the offence
C) Give the defendant an advance indication of the likely sentence he would receive were he to plead guilty.
D) Provide detailed directions in relation to the defendant’s trial if he pleads not guilty
E) Provide the prosecution and defence with a trial date if he pleads not guilty.
CORRECT ANSWER B - because the court will not hear the oral evidence of witnesses at a Plea and Trial Preparation Hearing. Witnesses will normally only be heard at a trial, a Newton hearing or possibly a voir dire.
Option A is wrong, because unless the defendant’s case is adjourned, the court will almost certainly want the defendant to enter pleas (known as being arraigned in the Crown Court).
Option C is wrong because the defendant can ask the judge for an indication of sentence were he to plead guilty. This is known as a Goodyear direction. The Crown Court judge is not obliged to give such an indication, but the defence can request it.
Option D is wrong because the Crown Court will provide detail directions if the defendant pleads not guilty. Option E is wrong because if the defendant pleads not guilty, the court is likely to set a trial date at the PTPH.
A defendant is arrested for the burglary of a storage unit. He is alleged to have stolen a bicycle belonging to a famous cyclist from the unit. The cyclist states that the bicycle is worth £12,000 which is not in dispute. A woman identifies the defendant as being the person who rode the bicycle out of the storage unit on the night of the burglary. When the defendant was arrested, he gave an interview stating that he has never been to the storage unit and that the women was mistaken when claiming to identify him. He was then subject to a video identification procedure and was picked out by the woman. You can assume that the video identification procedure was conducted lawfully in accordance with Code D of the Codes of Practice to PACE 1984. The defendant denies the burglary.
Which of the following prosecution witnesses must the defence ask the prosecution to call to give evidence?
A) The owner of the unit because the bicycle was taken from his property.
B) The cyclist because it is his bicycle and he must be in court to prove the value of the bicycle.
C) The woman because she is the only one who identifies the defendant as the burglar.
D) The police interviewer because the defendant put forward a defence in interview.
E) The officer in charge of the video identification procedure because she was there when the defendant was identified.
CORRECT ANSWER C - The woman is the only person who identifies the defendant as the burglar. She is a vital witness and will need to be cross-examined. She directly contradicts the defendant’s assertion that he had never been to the storage unit.
All the other prosecution witness statements are likely to be agreed by the defence under the s.9 Criminal Justice Act 1967 procedure:
Option A is wrong because although the owner of the storage unit is likely to give a statement that no one except his staff or the cyclist are allowed to enter the unit, the defendant’s case is that he was never at the unit not that he had permission to be there.
Option B is also wrong because the defendant does not appear to be denying that the bicycle was stolen or its value. He is saying that he is not the one who stole it. The value of the bicycle can also be proven by a receipt or statement. The cyclist does not therefore need to be called to give evidence to prove this.
Option D is wrong because a police interviewer is seldom asked to give evidence as the interview is usually audio recorded (sometimes audio-visually). The only time that a police interviewer is required is if there is a dispute about the interview. Normally, the interview will be summarised, or a transcript will be prepared.
Option E is wrong because the video identification procedure will be filmed and, once again, an officer will not be required unless there is an important dispute, but here we are told it was conducted lawfully.
On the 11th March, a defendant pleaded not guilty to criminal damage. The trial was set down for the 16th July. The prosecution provide initial disclosure of their case by the 8th April in accordance with s.3 CPIA 1996. The defence provided a notice on the 10th June that they intend to call a defence witness at trial. The defence provided the prosecution with her name, address and date of birth.
In these circumstances could the court draw an adverse inference against the defence for their failure to comply with relevant trial preparation procedure in accordance with s.11 CPIA 1996?
A) Yes, because the defence failed to provide the prosecution with the nationality of the witness.
B) No, because the defence provided the defence with all the details of the witnesses that are required.
C) Yes, because the defence failed to provide the prosecution with a copy of the witness statement.
D) No, because the defence provided the prosecution with the notice more than 28 days before the trial.
E) Yes, because the defence provided the prosecution with the notice more than 28 days after initial disclosure of the prosecution case.
CORRECT ANSWER E - because the defence must serve notice of the witness within 28 days from the date which the prosecutor complies or purports to comply with s 3 of the CPIA 1996. Here, the defence have served the witness notice more than two months after initial disclosure. Therefore, an inference may be drawn by the failure to comply with the rules of the CPIA.
A is wrong because the defence need to supply the prosecution with the name, address and date of birth of the witness. The witness’s nationality is not required.
B is wrong because although the defence did provide all the required information to the prosecution, it was late so an inference may be drawn.
C is wrong, because unlike in civil proceedings, a statement of the witness is not required. However, the police may interview the witness themselves.
D is wrong because the court may draw an inference from the failure of the defence to comply with s 11 of the CPIA 1996 regardless of the fact that the prosecution would have over 28 days to check the previous convictions of the witness and for the police to speak to them. The fact that the defence have given a reasonably long time for the prosecution to make these enquiries may mean that the court will decide not to draw an inference. However, s 11 of the CPIA 1996 states that a court may do so.
A defendant was arrested for robbery. As he was handcuffed, he swore at the police offices allegedly causing them harassment, alarm and distress. The defendant was then charged with robbery and an offence contrary to Section 5 of the Public Order Act 1986, which is a summary only, non-imprisonable offence.
If the defendant wishes to plead not guilty to both offences, what will happen at the first hearing at the magistrates’ court?
A) The defendant will plead not guilty to both offences and the magistrates will send both offences to the Crown Court.
B) The defendant will indicate a not guilty plea to both offences and the magistrates will send both offences to the Crown Court.
C) The defendant will indicate a not guilty plea to the robbery and plead not guilty to the Public Order Act offence. Both offences will then be sent to the Crown Court.
D) The defendant may indicate a not guilty plea to the robbery (but will not be asked to do so) and will plead not guilty to the Public Order Act Offence. The robbery will be sent to the Crown Court, but the Public Order Act offence will remain in the magistrates’ court.
E) The defendant will indicate a not guilty plea to both offences. The robbery will be sent to the Crown Court, but the Public Order Act will remain in the magistrates’ court.
CORRECT ANSWER D - The magistrates’ court cannot take a plea to the robbery because robbery is an offence triable only on indictment. The defendant can indicate a not guilty plea, i.e. that he intends to plead not guilty when he appears before the Crown Court but cannot formally enter a plea. The magistrates court have no option but to send the robbery to the Crown Court because it is an indictable only offence. However, the magistrates’ court cannot send the s 5 POA 1986 offence to the Crown Court because it is non-imprisonable. The magistrates’ court can only send related summary offences to the Crown Court if they are imprisonable or endorsable (i.e. driving offences, where a defendant can receive points on their driving licence or be disqualified from driving).
Option A is wrong because the defendant cannot plead not guilty to the robbery offence because it is indictable, and the Public Order Act matter cannot be sent.
Option B is wrong because although the defendant can indicate a not guilty plea to the robbery, he cannot indicate a plea to a summary only offence or have this Public Order offence sent to the Crown Court.
Option C is wrong because although the defendant can indicate a not guilty plea to the robbery and plead not guilty to the Public Order Act Offence, the magistrates’ court cannot send the Public Order Offence to the Crown Court.
Option E is wrong because the defendant cannot indicate a not guilty plea to a summary only offence. The defendant must plead either guilty or not guilty to such an offence.
A defendant is charged with murder. The allegation is that he stabbed the victim outside a shop and ran away. In his police interview, the defendant denied presence and stated that he was at home alone at the time. His home is one mile away from the scene of the killing. The defendant’s defence statement reflects his police interview. A few days after his solicitor serves the defence statement, the prosecution provide cell site evidence showing that the defendant’s contract mobile phone was in the vicinity of the shop at the time of the killing. On hearing this new evidence, the defendant tells his solicitor that in fact he did stab the victim, but he was acting in self-defence at the time because the victim tried to stab the defendant first. When his solicitor asks him why he lied, he said he was scared.
Which of the following best describes the solicitor’s obligations on receiving these new instructions from the defendant?
A) The solicitor must withdraw from acting for the defendant because the defendant lied to his solicitor when giving his first set of instructions.
B) The solicitor should advise the defendant to update the defence statement with the defendant’s new instructions which the defendant must sign. The solicitor must inform the defendant that the change in his defence statement will likely be used against him by the prosecution at trial.
C) The solicitor must not update the defence statement because it would contradict the defence statement that was already supplied to the court and the prosecution.
D) The solicitor must update the defence statement despite any wishes of the defendant because the original defence statement is false.
E) The solicitor must update the defence statement with the defendant’s new instructions, but the prosecution will not be able to use the alteration of the defence statement against the defendant because the defendant has now told his solicitor the truth.
CORRECT ANSWER B - While a solicitor might wish to withdraw if they believe that they are professionally embarrassed, they need not if their client has a good reason for changing their instructions.
Option A is wrong because a solicitor need not withdraw in these circumstances. A solicitor must withdraw if their client insists on lying to the court by giving untrue evidence.
Option C is wrong because the Criminal Procedure and Investigation Act s.11 states that where the defence statement is not updated, a court or jury may draw an inference from the failure to do so.
Option D is wrong because whilst it will probably be in the defendant’s interest that he updates the defence statement, it is ultimately the decision of the defendant. The solicitor cannot update the statement contrary to his instructions.
Option E is wrong because if the solicitor advises the defendant that he should update his statement, the prosecution is likely to ask the court for an inference to be drawn from the fact that the defendant initially served a false statement. However, the inference is likely to be far less than not changing the statement at all and then for the defendant to give evidence contrary to his original statement. The solicitor could not let the defendant give evidence to the court as per the original statement now as it is known to be a lie. The defendant would either have to decline to testify or tell the truth as per his new instructions.
A solicitor is representing a defendant on a matter of assault occasioning actual bodily harm. The defendant allegedly kicked the victim causing her to break her ankle. The defendant pleads not guilty on the basis she did not kick the victim. The court declines jurisdiction and sends the case to the Crown Court. Before the Plea and Trial Preparation Hearing in the Crown Court, the prosecution discloses to the defence that the court have ordered a witness summons for the victim. The prosecution will ask for a warrant for the victim if she fails to attend to give evidence at the trial. The defendant comes into the solicitor’s office for a conference. The defendant tells her solicitor that she did kick the victim but caused her no injury. The defendant wants the case resolved as quickly as possible.
In these circumstances, what would be the best advice that the solicitor could give the defendant?
A) The court will not grant a warrant for the victim to attend court because the victim gave her statement voluntarily and she has the choice as to whether to proceed with the case.
B) The defendant should plead guilty to assaulting the victim and causing her actual bodily harm because the defendant kicked the victim.
C) The defendant should plead not guilty at the Plea and Trial Preparation Hearing because she did kick the victim, but it caused no injury.
D) The solicitor should ask the prosecution whether they would accept a plea to a lesser charge of common assault because the kicking caused no injury.
E) The solicitor must tell the defendant that she must withdraw as the defendant’s solicitor because the defendant had lied to her when she said that she did not kick the victim.
CORRECT ANSWER D - The defendant is guilty of common assault because common assault requires no injury to be caused. If the prosecution were to accept a plea to the lesser offence, a guilty plea to common assault could be entered instead which would resolve the case without the necessity of a trial. The defence should contact the prosecution directly rather than wait until the Plea and Trial Preparation Hearing because the solicitor is required to be active in case management.
Option A is wrong because a court can ask for a warrant for the arrest of a witness even if she is the victim and gave her original statement voluntarily. This is very common occurrence in domestic violence cases in the Crown Court.
Option B is wrong because the defendant must cause some form of injury, however slight, for the defendant to be guilty of assault occasioning actual bodily harm (“ABH”).
Option C is not the best answer. It is correct insofar as the plea to ABH is concerned. However, the defendant wants her case resolved as soon as possible. By simply pleading not guilty to the ABH, there will still be a trial. Here, we are told that the defendant wants the case resolved as soon as possible, Having a trial will delay the resolution of the case. Further, if the defendant gives evidence at her trial as per her instructions to her solicitor, she is likely to be found guilty of common assault because it is alternative charge to ABH and she will admit the offence if she gives evidence in court.
Option E is wrong because a defendant can change her instructions to her solicitors if the solicitor confirms that these are her new instructions and that the defendant instructs her to act on them.
