Criminal Litigation SAQ Mock 3

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billsykes
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210267
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Criminal Litigation SAQ Mock 3
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2013-03-30 20:35:05
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Criminal Litigation
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Criminal Litigation
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  1. Erica appears before the magistrates’ court charged with assault.  Erica pleads not guilty. On the date fixed for trial, Erica is present but Susan, whom she wishes to call as a witness, does not attend.  That morning,Erica received a text message from Susan. The message said that Susan would not be able to attend due to problems arranging suitable child-care.  Erica’s counsel seeks an adjournment, but the magistrates refuse.  The trial proceeds and Erica is convicted.  Erica seeks advice on how she might secure the quashing of the conviction.

    What mechanisms exist which enable a defendant who was convicted by a magistrates’ court to secure the quashing of that conviction?
    The four mechanisms for quashing convictions are:

    1. Apply to Mag's court to set aside the conviction.

    2. Appeal to Crown Court against conviction.

    3. Appeal to High Court by way of case stated.

    4. Seek judicial review.

    [1 mark for each]
  2. Erica appears before the magistrates’ court charged with assault.  Erica pleads not guilty. On the date fixed for trial, Erica is present but Susan, whom she wishes to call as a witness, does not attend.  That morning,Erica received a text message from Susan. The message said that  Susan would not be able to attend due to problems arranging suitable  child-care.  Erica’s counsel seeks an adjournment, but the magistrates  refuse.  The trial proceeds and Erica is convicted.  Erica seeks advice on how she might secure the quashing of the conviction.

    Explain why each of those methods would or, as the case may be, would not be available in Erica’s case.
    Availability:

    Seek the setting aside of the conviction under s 142 of the MCA 1980: not available, since there is no obvious error in the decision of the magistrates;

    appeal to the Crown Court against conviction: available, since Erica pleaded not guilty and was convicted;

    appeal to the High Court by way of case stated: not available, as no error of law or jurisdiction; 

    seek judicial review: available, since a key basis of appeal is procedural unfairness.
  3. Erica appears before the magistrates’ court charged with assault.  Erica pleads not guilty. On the date fixed for trial, Erica is present but Susan, whom she wishes to call as a witness, does not attend.  That morning,Erica received a text message from Susan. The message said that  Susan would not be able to attend due to problems arranging suitable  child-care.  Erica’s counsel seeks an adjournment, but the magistrates  refuse.  The trial proceeds and Erica is convicted.  Erica seeks advice on how she might secure the quashing of the conviction.

    Explain which method would be most appropriate in Erica’s case.
    Appeal to the Crown Court is the most appropriate:

    Crown Court appeal is cheaper and/or quicker

    Crown Court appeal takes the form of a re-hearing and so Susan will be able to testify even though she did not give evidence at the original trial.
  4. Ben has been charged with theft, contrary to s 1 of the Theft Act 1968, from a clothes shop. The maximum sentence upon conviction on indictment is seven years’ imprisonment. 
    He is due to appear in the magistrates’ court for his first appearance.  You are instructed to represent Ben.  Your instructing solicitors have provided you with a list of Ben’s previous convictions. He has three previous convictions for theft.  In relation to the last of those convictions, he failed to attend court for his sentencing hearing. In relation to the current charge, the theft took place during late-night opening, at around 8.00 pm. Before going to see Ben you speak with the prosecution representative at court. You are informed that the CPS will be objecting to bail on the basis that Ben would commit further offences and that he would fail to surrender to custody due to the nature of his antecedents. When you meet Ben in the cells, he instructs you that he wishes to make an application for bail. He is prepared to abide by any conditions, but if granted bail he is keen to continue with his work. Ben is currently employed as a nurse.  Every three weeks he has to do night shifts at the local hospital.  The night shifts start at 7.00 p.m. He asks what can be done if the magistrates refuse to grant bail.  He has also heard that he may have a better chance of being granted bail if he goes to the Crown Court.

    What would be the best advice you could give to Ben regarding conditions that might be imposed if bail is granted.
    (a) In order to address the concern that he would fail to surrender to custody, the magistrates would be most likely to consider the following possible conditions:

    residence;

    reporting at a local police station;

    a surety

    In order to address the concern that he would commit further offences, the magistrates would be most likely to consider the following possible condition:

    exclusion from the clothes shop

    Since the offence took place in the evening, the magistrates may be minded to impose a curfew. But this would inhibit his ability to work
  5. b) If bail is refused at the first appearance, what advice would you give to Ben regarding any further bail applications in the magistrates’ court? [2 marks]
    (b) Ben could make a further bail application at the next hearing, which could be supported by the same arguments regarding fact and law (BA 1976, sch . 1, part IIA, para 2).  [1mark] 

    • Should that application fail, at subsequent hearings the court need not hear arguments, as to fact or law, which it has heard previously (BA 1976, sch. 1, part II A, para 3) and so any subsequent application should be based on a change of circumstances/new considerations.
    • [1mark]
  6. c) If Ben were on bail for another offence at the time of his first appearance, how would that affect his application for bail in relation to the charge of theft? [1 mark]
    Ben would lose his ‘right’ to bail. The new test being that the defendant need not be granted bail if the offence is indictable and he appears to the court to have been on bail at the time of the new offence (BA 1976, sch.1, part I, para. 2A)
  7. (d) Before an application for bail can be made in the Crown Court, what must be obtained from the magistrates’ court? [1 mark]
    Ben’s advocate must apply for a certificate of full argument from the magistrates’ court (Section 81(1J), Senior Courts Act 1981).
  8. (e) If bail were granted by the magistrates, what factors would determine whether the prosecution could appeal against the granting of bail? [3 marks]
    (e) The prosecution could appeal under the Bail (Amendment) Act 1996, as this is an imprisonable offence; 

    the prosecution is being conducted by CPS;

    the prosecution will have made representations that bail should not be granted;

    the prosecutor must give oral notice of intention to appeal at the conclusion of the hearing;

    and written notice confirming the appeal must be served within 2 hours

    Such appeals are only brought in cases of grave concern

    [0.5mark each]
  9. James and Tariq are charged with robbing  Nina. Before his police interview, James and his solicitor were told by the officer in the case that James’s DNA had been found on Nina’s clothing.  The officer knew this to be untrue.  As a consequence James admitted
    committingthe robbery, although he stated that his accomplice was not Tariq, but was another person whom he was unwilling to name. 

    At trial, both James and Tariq deny committing the robbery.The prosecution and Tariq wish to adduce evidence of James’s police interview.The prosecution also wish to admit evidence of Tariq’s previous conviction for robbery in 2005.

    Explain (with reasons) the basis upon which
    James may challenge the admissibility of his confession by the prosecution. [3 Marks]
    James may challenge the admissibility of the confession under PACE 1984,s. 76(2)(b). The basis for the challenging the confession is that it was or may have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession made by him in consequence. [1 mark]

    • The admissibility of the confession might also be challenged under PACE 1984, s. 78.This is on the basis that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the trial
    • that it ought not to be admitted. [1 mark]

    The lie told by the police to James and his solicitor could render the confession unreliable. [0.5 mark]

    or could have such an adverse effect on the fairness of proceedings that it ought not to be admitted, as this is a trick which crosses the line into bad faith. [0.5 mark]
  10. (b) If James makes an application to exclude his police interview using a statutory provision which applies to confession evidence only, who bears the burden of proof in that application and what is the standard of proof? [2 marks]
    Where an application to exclude is made under PACE 1984, s. 76(2)(b)(which applies to confession evidence only) the burden is on the prosecution. [1 mark]

    The standard is “beyond reasonable doubt”. [1 mark]
  11. (c) If James was successful in excluding the admission of his interview by the prosecution, explain why Tariq is not automatically prevented from seeking to admit it. [1 mark]
    The confession is not automatically excluded for Tariq because PACE1984, s. 76A permits confessions to be admitted by co-defendants where they have been ruled inadmissible for the prosecution.
  12. (d) Where James applies to exclude his confession as evidence for Tariq, who will bear the burden of proof in that application and what standard of proof will apply? [2 marks]
    The burden will be on Tariq to prove that the confession was not rendered unreliable (as per s. 76(2)(b)). [1 mark]

    The standard is the balance of probabilities [1 mark]
  13. (e) On what basis might the prosecution apply to admit the evidence of Tariq’s previous conviction for robbery? [1 mark]
    The prosecution might apply to admit the previous conviction under CJA2003, s.101(1)(d) on the basis that it is relevant to an important matter in issue between the prosecution and the defendant
  14. (f) On what basis might Tariq apply to exclude evidence of his previous conviction? [1 mark]
    Tariq might apply to exclude his previous conviction on the basis that it is a single conviction and dates from 2005 and therefore does not establish propensity to commit the offence of robbery. [1 mark]

    He might apply to exclude it on the basis that its admission would havesuch an adverse effect on the fairness of the trial that it must not/ ought notto be admitted (CJA 2003, s.101(3) & PACE 1984, s. 78) [1 mark]
  15. Sean and Ryan are charged with arson by setting fire to Ian’s shop. A witness, Tim, makes a statement in which he says that he saw two men commit the offence and recognised one of them as Ryan.  Another witness, Sunita, makes a statement  in which she says that the day before the offence, she overheard Ryan (whom she knew) say to another male in a nightclub, “Ian has been disrespecting me and he’s going to be taught a lesson”.

    Following Ryan’s arrest, DC Gem (the officer in the case)answers a call to Ryan’s mobile phone, the phone having been seized as evidence.  The caller says, “Is that you Ryan, bruv? You better lie low after that business with Ian’s shop. That’s all I’m saying.”

    DC Gem later called on Eric who owns a hardware store. Eric was able to show him CCTV footage, recorded the day before the offence, of Ryan buying a container of methylated spirits.  The CCTV camera was in perfect working order and had been recording accurately.  The container shown in the footage is very similar in appearance to the one that was found by police near the scene of the fire.  

    Later, Eric makes a statement in which he identifies the container found near the scene of the fire as having come from his store.

    Before the trial, DC Gem is informed that  Dev is too frightened to give evidence,having been threatened by an associate of Ryan’s.  He is also informed that Eric has suffered a severe stroke and is too ill to attend to give evidence at trial that he identified the container as having come from his store.

    (a) If Tim could not be present at trial to give
    evidence about what he saw, but the prosecution wished to adduce his statement,
    explain (with reasons) whether the statement is hearsay. [2 marks]
    Tim’s statement is hearsay. Tim’s purpose in making the statement is to cause another to believe the matters stated [1 mark]

    And the purpose for adducing it is to prove the matters stated. [1 mark]
  16. (b) If the prosecution wished to call Sunita to give evidence about what she heard, explain (with reasons) whether this evidence is hearsay be [2 marks]
    Sunita’s evidence is not hearsay. It is original evidence which will beadduced to prove the state of mind of the maker of the statement [1 mark]

    Her evidence shows that Ryan had hostile intent towards Ian. [1 mark]
  17. (c) If the prosecution wish to adduce evidence of what was said in the call to Ryan’s mobile phone, explain(with reasons) whether this evidence is hearsay evidence. [2 marks]
    The evidence of what was said by the caller is not hearsay. The purpose of the maker of the caller is not cause Ryan to believe that he was associated with the offence but is, rather, to advise him to lie low. [1 mark]

    The  value of the evidence for the Crown is the implied assertion that Ryan was associated with offence and the intention of the Criminal Justice Act 2003, s. 115, is that implied assertions are not hearsay. [1 mark]
  18. (d) Explain (with reasons) whether the CCTV evidence is hearsay [1 mark]
    The CCTV evidence is not hearsay, as it is not a representation of factor opinion made by a person (Criminal Justice Act 2003, s. 115(2)). [1 mark]

    It will be adduced as real evidence [1 mark]
  19. Explain (with reasons) whether:

    Tim’s statement will be admissible. [2 marks]

    Eric’s statement will be admissible [1 mark]
    Tim’s statement will be admissible if the judge accepts that he is a witness who is unavailable through fear (CJA 2003 s. 116(2)(e))

    Tim is a witness who can be identified to the court’s satisfaction (CJA 2003,s. 116(1)(b)

    Fear is to be widely construed

    Leave is required

    The judge will have regard for the availability of special measures in helping the witness to overcome fear 

    Eric’s statement will be admissible if the judge accepts that he is unavailable because he is unfit due to illness (S 116(2)(b))
  20. Leonard is charged with assault occasioning actual bodily harm and possession of a bladed article in a public place without good reason or lawful authority.  The alleged offences arise out of a fight which took place between Leonard and Colin in a public car park over who should have the only parking space left.  During the fight, the police arrived and arrested Leonard. They then searched him and found a folding pocket-knife with a blade of four and a half inches.

    Leonard elects Crown Court trial and the indictment contains two counts, one alleging assault occasioning actual bodily harm and the other alleging that he had a bladed article in a public place.  Leonard is concerned that the jury might be more likely to convict him of assault if they decide that he was carrying a weapon, and so he wants an application to be made for severance of these two counts so that they are tried separately.

    Leonard’s defence to the charge of assault occasioning actual bodily harm is that he acted in lawful self-defence. In relation to the offence of having a bladed article in a public place, Leonard’s defence is that he used the knife in the course of his work as a plumber and was actually on call when he was trying to park his van in the car park. He therefore relies on the defence that he had a‘good reason’ to have the knife, a defence which imposes a reverse legal burden. 

    (a) What is the test for determining whether two counts can appear together in the same indictment?
    Under the Criminal Procedure Rules, the two counts must either be founded on the same facts, [1 mark]

    or form [part of] a series offences of the same or a similar character [1 mark]
  21. (b) Explain whether the two counts are correctly joined in Leonard’s case [1 mark]
    In the present case, the two counts are correctly joined because they arise from the same facts, in that they have a common factual origin.
  22. (c) Advise Leonard on whether the court is likely to order the counts to be severed so that they are tried separately [1 mark]
    The court is unlikely to order severance where counts are properly joined, as there is a presumption in favour of joint trial and there is nothing to suggest that severance would be appropriate in this case.
  23. If the counts are tried together, what direction will the judge give to the jury on how to approach the fact that they are trying two counts? [1 mark]
    The judge will direct the jury to consider the evidence on each count separately and not to assume that if they convict him of one count he must be guilty of the other.
  24. (e) Explain what is meant by the phrase ‘evidential burden’ and what is required of Leonard to discharge the evidential burden which he bears in respect of his defence of self-defence. [2 marks]
    An evidential burden is the obligation to adducing sufficient evidence to raise a fact in issue or ‘to get past the judge’ [1 mark]

    Leonard may discharge his evidential burden by adducing enough evidence to raise the possibility that he acted in self-defence [1 mark]
  25. (f) What is the burden of proof born by the prosecution in respect of Leonard’s defence of self defence and what standard of proof applies? [2 marks]
    Once the evidential burden has been discharged, the prosecution bear the legal burden. [1 mark]

    This requires the prosecution to satisfy the jury so that they are sure that Leonard was not acting in self-defence. [1 mark]
  26. (g) What standard of proof applies in respect of Leonard’s defence that he had a good reason for possessing the bladed article in a public place? [1 mark]
    As this is a reverse legal burden on the defendant, the standard is balance of probabilities.

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