Criminal Litigation SGS 17 Disclosure, privilege and PII

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billsykes
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210163
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Criminal Litigation SGS 17 Disclosure, privilege and PII
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2013-03-31 07:25:57
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Criminal Litigation SGS 17
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Criminal Litigation SGS 17
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  1. Which one of the following is INCORRECT?

    [A] Since Article 6 of the Human Rights Act, defendants have the right to see all material gathered about them in any case

    [B] The prosecutor has a continuing duty to disclose

    [C] The prosecutor must keep under review at any given time and especially after service of a defence statement any prosecution material that might undermine the prosecution case

    [D] If the defendant has served a Defence Statement and requested certain material and the prosecution then decides that there is nothing to disclose then the prosecution must make a written statement to that effect
    [A] Since Article 6 of the Human Rights Act, defendants have the right to see all material gathered about them in any case

    [INCORRECT therefore the right answer: see the disclosure regime under CPIA 1996]
  2. When CAN an application under Section 8 (for disclosure of prosecution material) of the CPIA 1996 be made?

    [A] After advanced disclosure, but before initial prosecution disclosure.

    [B] After initial prosecution disclosure, but before service of the Defence Statement.

    [C] After initial prosecution disclosure and the service of the Defence Statement.

    [D] After the committal hearing, but before initial prosecution disclosure.
    [C] After initial prosecution disclosure and the service of the Defence Statement.

    [CORRECT, see s.8 CPIA 1996]
  3. Which one of the following is CORRECT?

    [A] Privilege cannot be waived.

    [B] Privilege cannot be impliedly waived.

    [C] Privilege can be waived by the client’s lawyer.

    [D] If privilege is waived for part of a document, it is taken to be waived for the whole of the same document.
    [D] If privilege is waived for part of a document, it is taken to be waived for the whole of the same document. 

    [CORRECT, see, for example, Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529]
  4. Look at the following statements:

    i) The court will never order disclosure of an informant’s identity;

    ii) The court will order disclosure of an informant’s identity if it might prove the defendant’s innocence;

    iii) The court will never order disclosure of the location of a police surveillance post;

    iv) The court will order disclosure of the location of a police surveillance post if that is in the interests of justice.

    Which of the above statements are CORRECT?

    [A] i) and iv)
    [B] i) and iii)
    [C] ii) and iii)
    [D] ii) and iv)
    [D] ii) and iv)

    [CORRECT; see R v Keane [1994] 2 All ER 478 and R v Rankine [1986] 2 All ER 566]
  5. Jay Gill is being prosecuted by HM Revenue & Customs for being knowingly concerned in the fraudulent evasion of duty chargeable on goods contrary to Section 170(2) of the Customs and Excise Management Act 1979. In particular, Gill is alleged to have imported 8,000 cigarettes and 750 cases of wine between March and June 2012. Gill’s defence is that of ‘own use’ (which is a legitimate defence). However, on a search of his premises, lists were found which appear to record the sale of cigarettes and wine to third parties. Gill made no comment in interview.


    (a) A copy of a letter dated 6th May 2012 from Gill to Anderson & Co solicitors was found in the search. It asked for details as to what sort of explanation would provide him with a defence to allegations of smuggling tobacco and alcohol. Advise the defendant on the position of this evidence as far as privilege is concerned. (2 marks)
    The question is one relating to legal professional privilege. The issue here is whether the legal advice sought was in furtherance of a crime, fraud or in preparation for it. (1 mark) If Gill’s aim was to confirm whether his conduct was lawful then, it is submitted, the letter should attract legal professional privilege. However, if Gill was seeking advice on how to evade successful prosecution then privilege would not apply. (1 mark)
  6. (b) A copy of Gill’s proof of evidence was accidentally sent by his solicitors to prosecution counsel’s chambers. Can the prosecution use the details set out therein at trial? (2 marks)
    It is unlikely that prosecution counsel would seek to rely on the statement unless Gill makes an inconsistent statement when testifying. (1 mark)

    Should counsel wish to cross-examine Gill on the statement then he/she is likely to argue that the statement has been ‘produced’ without any form of trickery or deception of Gill or his lawyers and, as such, is admissible.(1 mark)
  7. (c) Gill testifies at trial and puts forward the defence of ‘own use’. When asked why he didn’t mention this in interview, he stated that he was advised by his solicitor to make no comment. How does this effect client/solicitor confidentiality? Would your answer be different if Gill gave the reasons why his solicitor advised him to make no comment? (2 marks)
    Privilege is not waived by the defendant stating in court that he/she remained silent on legal advice. (1 mark)

    It is only if the defendant goes further and explains the basis for the advice that legal professional privilege will be waived, albeit impliedly. (1 mark)
  8. (d) In cross-examination it is put to Gill that he is part of a network of smugglers regularly smuggling large quantities of tobacco and alcohol into the UK. Is he obliged to answer this question? (2 marks)
    This problem relates to the privilege against self-incrimination. If the question relates to the charge(s) Gill faces, then Gill will have to answer the question (1 mark).

    On the other hand, if the question relates to other, uncharged, matters then the rules regarding privilege against self-incrimination apply so that he does not have to answer the questions (1 mark).
  9. (e) Gill’s wife is called in his defence to give evidence in respect of his smoking and drinking habits, and his generosity in giving gifts. In cross-examination it is put to her that she helped distribute cigarettes and wine to Gill’s customers, and helped keep record of profits made form the sales. Is she obliged to answer this question? Would it make any difference to your view if HM Revenue & Customs gave an undertaking that she would not be prosecuted, regardless of her answer? (2 marks)
    Here, we must consider the rules regarding privilege against self-incrimination. In brief, Gill’s wife will not be obliged to answer the question if, in the court’s opinion the answer will expose her to proceedings for a criminal offence, forfeiture or recovery of a penalty (1 mark). However, note that if HM Revenue & Customs give a written undertaking that she will not be prosecuted, regardless of her answer, then there is no risk of exposure to proceedings for a criminal offence and (subject to clarification that she will not be subjected to a forfeiture or penalty!) the court will oblige her to answer the question. (1 mark)
  10. What are the consequences of not serving a defence statement?
    Inferences can be drawn by the court.
  11. Is there an obligation to serve a defence statement in the Mag's?
    No. But if you do, it has to be with 14 days
  12. Is there an obligation to serve a defence statement in the Crown Court?
    Yes. Duty to do so.

    28 days

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