Criminal Litigation MCQS Flashcards

Question

**A man is arrested in connection with an assault occasioning actually bodily harm (‘ABH’). At the police station he decides he does not need a solicitor as he has been interviewed by the police on many previous occasions. Prior to the interview he is told by the officer in the case that if he confesses then they will be able to start the interview quicker and get him out on bail, otherwise he will have to hang around in the cell all day. On this basis the man decides to make a full confession. He is charged with ABH and instructs a solicitor to represent him at court.** **Which of these statements best summarises the solicitor’s options regarding the man’s confession?** A) The solicitor can make an application to exclude the confession for oppression. B) The solicitor can make an application to exclude the confession for unreliability. C) The solicitor can make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings. D) The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings

Answer 1

D) The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings (It seems that the confession was obtained as the result of something said or done which renders the confession unreliable (section 76(2) Police and Criminal Evidence Act 1984). However, the defence would have to show a causal link between the officer in the case’s comments and the confession. The defence can also make an application on the basis that admitting the confession would have an adverse effect on the fairness of the proceedings (section 78))

Answer 2

D) The police constable’s question amounts to an interview which should have taken place at the police station (This falls within the definition of an interview under the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A – she is being questioned regarding her suspected involvement in an offence. Interviews should take place at a police station unless an exception applies e.g. where delay would hinder the recovery of property. None of the exceptions seem to apply in this instance. The defence can apply under s 78 PACE 1984 to have her answers ruled inadmissible)

Answer 3

C) The investigating officer should apply to the magistrates’ court for a warrant of further detention. The maximum period they can apply for in the first instance is an additional 36 hours. (This answer best reflects the position in relation to detention time limits and their extension in certain circumstances in sections 42- 44 Police and Criminal Evidence Act 1984. The maximum period of detention without charge is 24 hours from ‘the relevant time’ (when the suspect arrives at the police station). As the offence being investigated is indictable (murder is indictable only), the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time. The warrant may authorise continued detention for a further 36 hours on a first application and an additional 24 hours (up to a maximum of 96 hours) on a second application. Whilst other answer options might sound plausible, they are each incorrect as they state: - the investigating officer should seek authorisation from a superintendent or inspector rather than the magistrates’ court; and/ or - the incorrect maximum period the investigating officer can apply for in the first instance)

Answer 4

D) She is a witness to the offence (She cannot act as an appropriate adult in these circumstances because she is a witness to the offence. The other options while plausible are incorrect: · A parent can act as appropriate adult. In fact this is often the case. · Previous convictions do not bar a suitable individual from acting an appropriate adult. · An appropriate adult does not need to be legally qualified. · It is correct that she does not have a duty of confidentiality to her son but it is not the case that this would bar her from acting as an appropriate adult)

Answer 5

C) You can be kept in custody for up to 24 hours from your arrival at the police station. You must be charged or released before that time (Section 41 Police and Criminal Evidence Act (PACE) 1984 states a suspect can be kept in custody up to 24 hours from the ‘relevant time’ before being charged. The relevant time is arrival at the police station which is marked on the custody record, which the solicitor should have checked on arrival. The other options, while plausible are incorrect. · The ‘relevant time’ does not start from the time the suspect is arrested. · It is not clear as yet whether the suspect will be charged. · The Investigating Officer cannot extend detention on their own. An extension under s 42 PACE 1984 must be authorised by an unconnected officer of at least superintendent rank. The superintendent or above can only grant the extension if they have reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning. The investigation must be being conducted diligently and expeditiously. · The police can seek an extension of a further 12 hours under s 42 PACE 1984. That requires the authorisation of a superintendent or above. Only if they needed additional time beyond that would they be able to apply to the magistrates’ court under s 43 PACE 1984 (for an additional 36 hours). There is no suggestion here that further powers of detention under PACE would be required)

Answer 6

C) Her access to legal advice can be delayed with written authority from an officer of at least superintendent rank (The woman is in detention for an indictable offence. The superintendent has reasonable grounds to believe that the exercise of the right will lead to at least the alerting of other people suspected of committing an indictable offence but not yet arrested for it. In order to delay the right in accordance with s 58 Police and Criminal Evidence Act 1984 (and Code of Practice C Annex B), the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of superintendent. The other options, while plausible are incorrect: · Access to legal advice can be delayed in limited circumstances · Access to legal advice cannot be delayed indefinitely in any circumstances · Access to legal advice can only be delayed with authority from an officer of at least superintendent rank · A suspect can be interviewed before they have access to legal advice, though it can have major implications for any evidence obtained against the woman as a result)

Answer 7

E) She can make an application to exclude the confession for unreliability because of the threat to her husband and because of the adverse effect it would have on the fairness of proceedings. (Section 76(2) Police and Criminal Evidence Act 1984 allows the court to exclude the confession where something said or done renders it unreliable where it caused the confession. Section 78 grants the court the discretion to exclude any evidence (including a confession) where it would have such an adverse effect on the fairness of proceedings. The other options while plausible are incorrect: · There is no suggestion here of any oppression (such as threats of violence) so she could not make an application under s 76 on that basis. · She would most likely make an application under s 78 but would alsomake an application under s 76 which deals specifically with confessions. · She can make an application under s 78 which can be used to exclude any evidence on which the prosecution seeks to rely (including confession evidence). · It is not the case that a confession is admissible simply because a correct caution has been given. An application can still be made under s 76 and/or s 78)

Answer 8

C) To protect and advance the legal rights of their clients (This reflects the role of the solicitor as set out in the Police and Criminal Evidence Act 1984 Code of Practice C Notes for Guidance paragraph 6D)

Answer 9

E) Sit by and take notes (While comprehensive notetaking is an important aspect of police station practice, active defence requires more than this)

Answer 10

C) A superintendent determines an urgent interview is required because delay would lead to interference with evidence (The superintendent must also be satisfied that it would not significantly harm the person’s physical or mental state. The other options were incorrect because: · The rank for authorisation is superintendent or above. · It must be the case that in the reasonable opinion of the superintendent delay would lead to one of the specified outcomes in PACE Code of Practice C. · Ensuring that the suspect is not left waiting too long, which might be a detriment to their health is not a valid reason for an urgent interview with a vulnerable person without an appropriate adult)

Answer 11

D) You should explain the allegations against your client then allow them to provide you with a full account of their version of events (Your clients full account (including whether they accept any involvement) is vitally important when it comes to advising which option to take in interview. The other options were incorrect because: · You must take detailed instructions from your client in advance of the interview in order that you can properly advise and protect their interests. · You must give your client the opportunity to give you their account before you can advise on which option to follow at interview. For example, your client might have a defence that you are not aware of. · You are not testing the strength of your client’s version (this will be done in interview and possibly later in court). You need to provide them with all the information that you have available in order that they can respond to the allegations. · While inferences might be drawn, your client is under no obligation to answer questions just because they have admitted an offence to their solicitor. In fact, it may be in the client’s best interests to go ‘no comment’ if the police have insufficient evidence to prove the offence)

Answer 12

E) Previous convictions (This might be a factor in relation to bail and sentencing but it is not a factor when advising a client on their options for interview. The other answers were all relevant factors when advising a client on their options for interview: · The client’s account- For example, does the suspect admit the offence, which might lead to a ‘no comment’ interview? · Strength of the evidence- For example, if the evidence is weak then answering questions might cause your client to incriminate themselves. · Physical state of the client- The court might not draw and adverse inference where a defendant was advised not to answer questions because of their physical state. · Disclosure- Where a court considers that insufficient disclosure was provided prior to interview then it may decide not to draw an adverse inference)

Answer 13

E) A transcript of the interview will be read in court which will include both answers to questions and ‘no comment’ responses. (Unlike a ‘no comment’ interview, a transcript of a mixed interview is included as evidence. The impact of such a mixed response on the tribunals of fact (the jury or magistrates) is easy to imagine. The other options were incorrect: · While not very helpful to a suspect, they are still entitled to reply to some questions and not others. · If the suspect wishes to remain in control then a ‘no comment’ interview or pre-prepared statement makes far more sense. · As with interviews where questions are answered the mixed interview transcript would be read in court. · The court can still draw adverse inferences for those issues where a response was not given)

Answer 14

B) The police constable’s question amounts to an interview which should have taken place at the police station (This falls within the definition of an interview under the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A – she is being questioned regarding her suspected involvement in an offence. Interviews should take place at a police station unless an exception applies e.g. where delay would hinder the recovery of property. None of the exceptions seem to apply in this instance. The defence can apply under s 78 PACE 1984 to have her answers ruled inadmissible)

Answer 15

C) Yes because the police do not have to provide information on the accounting paperwork, as long as they give the solicitor sufficient information to understand the nature of the offence and why the man is suspected (This reflects thePolice and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A. Thereis no strict requirement to disclose particular items)

Answer 16

C) The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings (It seems that the confession was obtained as the result of something said or done which renders the confession unreliable (section 76(2) Police and Criminal Evidence Act 1984). However, the defence would have to show a causal link between the officer in the case’s comments and the confession. The defence can also make an application on the basis that admitting the confession would have an adverse effect on the fairness of the proceedings (section 78))

Answer 17

B) The suspect must be cautioned (The caution explains the possibility of an adverse inference being drawn. The other options were incorrect because: · There must be a trial otherwise any adverse inferences are irrelevant. If the case does not proceed to trial, or the defendant pleads guilty there will be no adverse inference. · An ordinary language ‘special warning’ is only required for inferences under s 36 ors 37)

Answer 18

D) No suspect can be convicted solely on the basis of an adverse inference (This is the safeguard within section 38 Criminal Justice and Public Order Act 1994. The other options are incorrect because: · No adverse inference can be drawn where the suspect has not been allowed access to legal advice. However, an adverse inference can be drawn even where the suspect has followed legal advice to give a no comment interview. · The basic principle is that every suspect has a right to silence. However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial)

Answer 19

A) He does not account for the blood stain on his clothing (He has failed to account for an object, substance or mark (in this case a mark) found on him at the time of arrest. The other options were incorrect because: · An inference might be drawn under section 37 because he failed to account for his presence in the pub on his arrest. · If he fails to explain why he shouted “I’m glad I hit him” on arrest or raise self-defence in interview then later does at trial then the court might be entitled to draw adverse inferences under section 34. · He is entitled to exercise his right to silence, but this does not necessarily cause an inference to be drawn under section 36)

Answer 20

B) Witness recognises and names the suspect (This is a form of visual identification, just like CCTV footage. The other options were other forms of identification evidence. However, people can also be incriminated by other types of evidence such as clothing description, description of the person, the description of the car the person was driving)

Answer 21

B) Video identification (If an identification procedure is to be held, the suspect shall initially be invited to take part in a video identification unless: (a) a video identification is not practicable; or (b) an identification parade is both practicable and more suitable than a video identification)

Answer 22

A) An officer with no connection to the case of at least the rank of inspector (The arrangements for, and conduct of, the eye-witness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’))

Answer 23

C) Crown Prosecution Service (Correct. The Crown Prosecution Service provide advice on charge in all but the most minor cases)

Answer 24

B) 6 months (Correct. Six months from the date of alleged commission of the offence)

Answer 25

C) Laying an information (Correct. Information alleging an offence is served on a magistrates' court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003)

Answer 26

E) A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession. (A court might draw inferences under s.36 Criminal Justice and Public Order Act 1994 (‘CJPOA’) (object, substance or mark) or s.37 CJPOA (presence on arrest at a particular place). Such inferences arise as soon as she fails to account for her presence or the metal bar. The other options, while plausible, are incorrect: Unlike s.34 CJPOA, inferences under s.36 CJPOA or s.37 CJPOA do not require that the defendant fail to mention something they later rely on. Inferences can be drawn here for both presence and the possession of the metal bar, the metal bar in her bag is still in her possession. Inferences can be drawn here for both presence and the possession of the metal bar, being outside the property would still count as being present. A special warning is required, but there is no suggested one was not given here. In any event s.36 CJPOA and s.37 CJPOA do not require later reliance on something)

Answer 27

D) Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava. However, it is highly unlikely that the matter will progress to trial if no further evidence comes to light (Correct. A defendant cannot be convicted on the basis of adverse inferences alone. In this case there would appear to be no evidence against the suspect, so it will not progress to trial. The other answers, while plausible, are incorrect: Adverse inferences will not be drawn if the matter does not progress to trial, based on the evidence available at present, it is incorrect to state that the matter will progress to trial. These adverse inferences would not be sufficient ‘overwhelming evidence’ to convict the defendant. A defendant cannot be convicted on inferences alone (s.38 Criminal Justice and Public Order Act 1994 (‘CJPOA’)). She has not failed to mention something she will later rely on in court (s.34 CJPOA). Inferences under ss. 36 and 37 trigger the possibility of inferences from the moment the suspect fails to account (unlike s.34). If the matter does reach trial (if new evidence comes to like) then inferences would be drawn under s.36 and s.37 CJPOA)

Answer 28

E) The court might draw an inference that he invented the defence between interview and trial. (A court can draw a ‘proper’ inference as they see approriate and this would appear to be a proper inference in the circumstances. The other answers, while plausible, are incorrect: A defendant will be cross examined as to why they did not mention something they later relied on, but no explanation will avoid a proper inference being drawn. He admits the burglary and possession of the ornament, so there is no suggestion that there would be an inference under s.36. The defendant would not be prohibited from raising a defence in any circumstances. There is no suggestion that s.37 CJPOA would apply here)

Answer 29

A) You cannot be excluded from the interview as you were not preventing or obstructing questions being put to your client (This answer is correct because preventing or obstructing questions being put to your client are the only grounds for a solicitor’s exclusion which has not happened here. Asking for the interview to be paused so that you can take instructions from the client on new evidence is the right course of action here. The other options, while plausible, are incorrect. It does not matter if the interviewing officer is not a superintendent. It is merely that a superintendent must authorise you being excluded from the interview. You can’t be excluded for advising no comment. A solicitor needs to play an active role in advising their client at the police station which sometimes will mean interrupting/ pausing the interview to take instructions. Another solicitor should only be requested where the original solicitor has already been excluded which has not happened here. The police cannot just arrange for another solicitor if they do not like the advice the solicitor is giving the client)

Answer 30

B) Yes. The police must conduct an identification procedure because the suspect denies the offence and the eye-witness has expressed an ability to identify the suspect (This answer is the best answer because the police must conduct an identification procedure where the suspect denies the offence and AND the eye-witness has expressed an ability to identify the suspect as here. The other options, while plausible, are incorrect. An identification procedure would serve a useful purpose even though the suspect has been recognised as there is an eye-witness who says he is fairly sure he could identify his attacker. An identification procedure would serve a useful purpose in these circumstances as your client, while admitting presence at the scene, denies being the attacker and the eye-witness says he is fairly sure he could identify his attacker. Here the relevant person is the eye-witness, who does not know your client, rather than the police officer. Whilst the suspect denies the offence, the ID procedure is necessary as there is an eye-witness who says he is fairly sure he could identify his attacker)

Answer 31

A) In a magistrates’ court for first appearance and the Crown Court for trial and sentencing (This is the correct procedure for indictable only offences such as robbery)

Answer 32

D) Trial (If the defendant indicates not guilty then any trial will take place on a later date)

Answer 33

A) The preparation for effective trial form (This is not required under Part 8 Criminal Procedure Rules. If the defendant pleads not guilty then this will be completed as part of the ongoing case management)

Answer 34

C) In a magistrates’ court for first appearance and either a magistrates’ court or the Crown Court for trial and sentencing. (Fraud is an either-way offence, so after first appearance in a magistrates’ court, the court for trial and sentencing will depend on a variety of factors, the magistrates’ accepting jurisdiction, the defendant’s election and the magistrates’ sentencing powers)

Answer 35

B) When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 6 months imprisonment will be insufficient (For a single either-way offence the maximum sentence is 6 months in the magistrates’ court)

Answer 36

B) There is no power to commit for sentence after trial (In general, either-way offences should be tried summarily unless: · the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or · for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. Before making a decision on allocation, the court shall give the prosecution an opportunity to inform the court of the accused’s previous convictions (if any). In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers)

Answer 37

A) Where the defendant is obliged to come back to court to continue with the case (This is the correct answer. The defendant may serve the remand in custody or in the community on bail)

Answer 38

A) The Judge in the Crown Court (This is the correct answer. In other cases, the first decision in relation to bail is taken by the magistrates’ court)

Answer 39

C) Section 4 (This is the correct answer. The court must presume that a defendant is entitled to bail, and it is only if an objection is properly made out that bail can be refused)

Answer 40

D) Fail to surrender to custody (This is the correct answer. This is one of the three primary grounds for objecting to bail for 'indictable' offences)

Answer 41

C) The prosecution (This is the correct answer. It is for the prosecution to apply to have the defendant remanded into custody if that is its desire by presenting objections to bail)

Answer 42

B) On conviction whilst reports are prepared pending sentence. (This is the correct answer. Although the concerns about a defendant absconding may be more serious following a conviction)

Answer 43

E) Commit further offences (This is the correct answer. This is one of the three primary grounds for objecting to bail for 'indictable' offences)

Answer 44

A) The prosecution or the defence (This is the correct answer. The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence))

Answer 45

C) Reporting to the police station at given times (This is the best answer as this condition will allow the prosecution to ensure the defendant is still in town)

Answer 46

A) No limit (This is the correct answer. The court can impose 'such conditions as appear necessary' meaning technically that there is no limit to the conditions that a court could choose to impose)

Answer 47

C) Not surrendering to custody (This is the correct answer. This is an offence punishable by up to three months' imprisonment in the magistrates’ court or 12 months on indictment)

Answer 48

B) Those who will breach a bail condition sometime in the future (This is the correct answer. The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so)

Answer 49

B) 12 months imprisonment (This is the correct answer. This is an offence punishable by up to three months' imprisonment in the magistrates’ court or 12 months on indictment)

Answer 50

C) When the court begins hearing evidence from the prosecution. (This is the correct answer. This is considered the start of the trial for the purposes of the expiry of the custody time limit)

Answer 51

D) 182 days, less any days spent in custody prior to the case being sent to the Crown Court (This is the correct answer. Usually the defendant will not spend any days in custody prior to the case being sent to the Crown Court)

Answer 52

D) It has acted with all due diligence and expedition and that there is good and sufficient cause to have the defendant further remanded into custody. (This is the correct answer. If the limits expire, then the defendant will be released, unless the prosecution successfully applies to extend the time limits)

Answer 53

A) Crown Court (This is the correct answer. The appeal will be heard within 48 hours, excluding weekends)

Answer 54

C) One week (This is the correct answer. Once the defendant has had both applications, the defendant must secure a 'certificate of full argument' from the magistrates' court before then appealing to the Crown Court, if he wishes to do so)

Answer 55

C) 8 clear days (This is the correct answer. Second appearance (in person or via live link) must be within eight days of the first appearance. D can make another bail application)

Answer 56

C) Three (This is the correct answer. The defendant can have two attempts at getting bail at the magistrates' court, and one attempt on appeal to the Crown Court)

Answer 57

A) Within 48 hours, excluding weekends (This is the correct answer. This applies where the magistrates’ court and Crown court grant bail)

Answer 58

A) High Court (This is the correct answer. The appeal will be heard within 48 hours, excluding weekends)

Answer 59

E) The court will decide whether their sentencing powers are sufficient. If they determine their powers are not sufficient then they will commit to the Crown Court for sentence. (Correct. The court would have to determine whether their sentencing powers of up to 6 months’ imprisonment per offence and/or unlimited fine per offence would be sufficient. The Crown Court would have any sentence available for the offence of theft. The other options are incorrect: This question is not about allocation. Allocation guidelines are only considered when a defendant pleads NOT GUILTY. This is not an indictable only offence so will not be sent directly to the Crown Court. The Court would not automatically commit for sentence, and if it decided to then the Crown Court would not be limited in its sentencing powers. A defendant cannot elect Crown Court for sentencing. (And why would they?))

Answer 60

C) She has a right to bail but the prosecution are likely to object on the basis that she will fail to surrender to custody if released on bail because of her previous fail to surrender (Correct. She has the right to bail but one of the grounds on which the prosecution will object is that she would fail to surrender on the basis of her previous bail record. The other answers are plausible but not correct: Previous convictions can be used as evidence of substantiating grounds on which she should be remanded in custody, but they are not grounds on their own. She retains the right the bail under s. 4 of the Bail Act 1976. She has breached bail conditions before, but that does not automatically mean she will be refused bail. The court will hear representations from prosecution and defence. In this case it is the breach of her bail conditions that is relevant, not the nature of the offence. Common assault is summary only but she still failed to surrender to the court at the appointed time)

Answer 61

B) A condition of residence at her mother's address and not to enter the supermarket (Correct. Your client has a bail address (their mother's address) therefore it would be appropriate to put forward a condition of residence. Such a condition can be imposed to address any concerns the court may have of your client failing to surrender. Even though the prosecution do not object to bail on the grounds of failing to surrender it would strengthen your argument for granting your client bail if the condition was put forward. Your client has recent previous convictions for committing the same offence at the same location. It would therefore be appropriate to put forward a condition that your client does not enter the supermarket to reduce the risk of your client committing further offences on bail. The other answers while plausible are incorrect. The prosecution does not object to bail on grounds that the client will fail to surrender and therefore is would not be proportionate to impose a daily reporting condition which reduces the risk of absconding. A curfew would also not be appropriate as there is nothing to suggest that the client has a pattern of offending at night. Even though it would be appropriate to put forward a condition of residence it would not be relevant for your client to surrender their passport. There is no information to suggest that your client will leave the country and abscond. Even though it would be appropriate to put forward a condition of residence and for your client not to enter the supermarket, it would not be relevant for your client to pay a surety as the prosecution are objecting on the basis that she would commit further offences. Even though it would be appropriate to put forward a condition of residence a curfew would not be relevant as there is nothing to suggest that the client has a pattern of offending at night)

Answer 62

A) Your first hearing will be at the magistrates’ court but your case will be tried at the Crown Court. (Correct. S.18 GBH is an indictable only offence, but the first hearing would still be at the magistrates’ court. The other answers are not correct: First hearings for any indictable only offence are always at the magistrates’ court. This is not an either way offence, so there will be no plea before venue and allocation hearing. This is not an either way offence so the magistrates would never try the case before remitting to the Crown Court for sentence. The first hearing would be at the magistrates and the Crown Court does not determine whether or not to accept jurisdiction)

Answer 63

C) He can appeal the bail decision to the Crown Court. If he is unsuccessful he will not be able to make a further bail application unless there is a change in his circumstances. (Correct. A defendant has two attempts at bail in the magistrates’ court after which they must secure a ‘certificate of full argument’ from the magistrates before appealing. The appeal is heard by the Crown Court one business day after receipt of the appeal notice. While plausible the other options are incorrect: It is correct he only has 2 attempts in the magistrates’ court but he can also appeal to the Crown Court. He cannot make a further application at the start of trial as he has made 2 applications already. He can (as of right) appeal to the Crown Court. He doesn’t require a change of circumstances to appeal to the Crown Court)

Answer 64

A) Plea and trial preparation hearing (Correct. A plea and trial preparation hearing (PTPH) must happen in all cases. Further applications may be dealt with on the day of the trial, before it begins)

Answer 65

D) Custodial sentence (Correct. A defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to: an absolute discharge, supervision order or a hospital order)

Answer 66

C) To make the same argument on the facts before a different judge (Correct. An application to vary or discharge a pre-trial ruling can only be made if either: (a) there has been a material change in circumstances; or (b) something was not brought to the attention of the court when they made the ruling which could justify variation or discharge)

Answer 67

C) Disciplinary findings against police officers (Correct. This will form part of the unused material that is not being relied upon by the prosecution. Unused material will include other items such as: statements from witnesses that the prosecution is not relying upon at trial to prove its case and records of previous convictions of prosecution witnesses)

Answer 68

B) At least until the defendant is released from custody (Correct. Where the defendant is convicted, relevant material must be retained at least until the defendant is released from custody (or discharged from hospital))

Answer 69

A) The officer in charge of the investigation (Correct. The officer in charge of the investigation is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material)

Answer 70

A) Defence statement (Correct. The contents of defence statements are set out in Criminal Procedure and Investigations Act (CPIA) 1996, s.6A)

Answer 71

C) Within 28 days of the date when the prosecution complies with its duty of initial disclosure or purports to do so (Correct. This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days)

Answer 72

C) The defendant will not be able to make an application for specific disclosure (Correct. Although serving a defence statement in a magistrates’ court is not compulsory, the other consequence is that the prosecution will not have the opportunity to review disclosure in light of the issues)

Answer 73

B) Until the defendant is convicted, acquitted or the prosecutor decides not to proceed (Correct. There is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served)

Answer 74

C) The prosecution can seek a summons (Correct. If there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material)

Answer 75

B) The jury may draw such adverse inferences as appear proper (Correct. While the potential consequences of failure to disclose by the prosecution are serious, this is not one of them. Drawing such inferences as appear proper is a consequence for the defendant regarding D’s failure to serve a defence statement in the Crown Court)

Answer 76

C) Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness (Correct. This is a common and basic definition of evidence, implying that it can be used by either party)

Answer 77

B) The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence (Correct. The facts in issue are essential the elements of the offence and any defence raised by the defence)

Answer 78

A) Judicial notice (Correct. The other ways in which a fact might be proved in court are live oral testimony, s.9 Criminal Justice Act 1967 read statement, section 10 Criminal Justice Act 1967 agreed facts)

Answer 79

A) Submission of no case to answer (Correct. Submissions of no case to answer are only available during trial and generally at the close of the prosecution case- the Galbraith test is used)

Answer 80

B) The defendant in relation to evidence on which the prosecution proposes to rely (Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to 'evidence on which the prosecution proposes to rely' so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.)

Answer 81

C) Abuse of process application (Correct. An application to stay the indictment, in this case because continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute)

Answer 82

C) Exclusion of unfair evidence (Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded)

Answer 83

A) The defendant in relation to evidence on which the prosecution proposes to rely (Correct. Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to 'evidence on which the prosecution proposes to rely' so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit)

Answer 84

B) No (Correct. Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it)

Answer 85

A) Wholly exculpatory statements (Correct. This does not fall within the definition of a confession. Words such as ‘it was nothing to do with me’)

Answer 86

A) The suspect making an admission because they consider this is likely to get them bail (Correct. This is not a thing said or done for the purpose of proving that a defendant’s confession is unreliable under s.76(2)(b) PACE 1984. The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b))

Answer 87

B) The prosecution can suggest to the jury that facts were discovered by reason of something said by the defendant (Correct. To do so would be to circumvent the exclusion of the confession itself. It would be unacceptable for the prosecution to say, for example, 'members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.')

Answer 88

A) Yes (Correct. It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78. Making an application to exclude evidence of a confession under s.76 does not preclude the defence from also making an application to exclude evidence of a confession under s.78)

Answer 89

B) s.78 (Correct. Section 78 PACE allows a court to examine a case from a perspective of overall fairness, including oppression or unreliability engaged under s.76 PACE 1984)

Answer 90

A) No (Correct. Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it)

Answer 91

C) The witness statement should be agreed so it will be read out in court. (Correct. Your client does not challenge the witness’s account and therefore the statement can be agreed between the parties under the Criminal Justice Act 1967 s.9. The statement will be read out in court and given the same weight as if the police officer had attended and given oral evidence. The other options while plausible are incorrect: The police officer’s statement does not deal with the ownership of the credit card. The fact that it doesn’t belong to your client might be agreed as a fact between the parties under CJA 1967, s.10. There is no need to challenge the officer’s statement. Your client does not disagree with the account put forward by the officer and therefore it can be agreed under s.9. As per the above, you are able to accept the statement as true as per CJA 1967, s.9. If the statement is agreed under s.9 the witness does NOT have to attend to read the statement. It can be read by the prosecutor)

Answer 92

C) You can seek to exclude the knife from evidence on the basis that the evidence would have such an adverse effect on the fairness of proceedings (Correct. You can make an application under s.78 (1) of PACE. The court has the discretion to exclude the evidence or not. The other answers while plausible are incorrect: Circumstances of obtaining the evidence are relevant under s.78 PACE. The importance to the prosecution of that piece of evidence is not relevant to s.78. There is no burden of proof. The court will have the discretion to decide whether or not to exclude under s.78. Evidence is not excluded automatically for breach of police codes of practice)

Answer 93

E) A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript. (Correct. Timetables will be set for bad character applications as well as agreement of interview transcript. Because the witness is under 18 she automatically qualifies for special measures. The other answers while plausible are incorrect: Bad character applications would not be made at trial. An application must be served and responded to as per the court’s standard directions. A timetable will be set for this at the PTPH. The witness is 13 years old so no argument would need to be heard regarding special measures as they would automatically qualify. The prosecution and defence will agree and edited version of the police interview transcript. Bad character evidence is inadmissible and the prosecution must apply to admit the evidence)

Answer 94

D) The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings (Correct. An application would be made under s.76(2)(a) of PACE. Further, an application under s.78 could also be made. The other answer while plausible are incorrect: The defence do NOT need to prove that the confession was obtained by oppression. The defence can make an application under s.76 as well as s.78 PACE. The defence can make an application under s.78 as well as s.76 PACE. The prosecution must refute any claim under s.76 beyond reasonable doubt)

Answer 95

A) You rely on s.78 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (Correct. The court should refuse to allow the evidence as the admission of an interview without a solicitor where the suspect has learning difficulties could have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The other answers while plausible are incorrect: There is no evidence of oppression under s.76 The wording of the statute is incorrect in the remaining answers)

Answer 96

A) Prosecution (Correct. The general rule is that the prosecution bears the legal burden of proving all the elements of the offence necessary to establish guilt- the facts in issue (Woolmington v DPP [1935] AC 462). There are exceptions to this general rule.)

Answer 97

A) So that a jury are sure of guilt / Beyond reasonable doubt (Correct. The prosecution must prove all the elements of the offence/ all the facts in issue beyond reasonable doubt, so that the tribunal of fact is satisfied so that it is sure (Woolmington v DPP [1935] AC 462))

Answer 98

C) It is the burden to adduce evidence to satisfy the judge that an issue should be left to the tribunal of fact (Correct. The evidential burden is neither a form of burden of proof nor does it have to be established to any particular standard)

Answer 99

B) R v Turnbull (Extensive psychological research has highlighted the errors eyewitnesses make when they observe, interpret and recall information. An honest witness may be a very convincing witness but may still be mistaken. More than one witness can be honest and convincing but mistaken)

Answer 100

B) Whether the witnesses seem honest and convincing (Honest and convincing witnesses can still be mistaken. The identification evidence can have weaknesses and deficiencies but there must be sufficient evidence upon which a jury properly directed could convict. The judge will consider if there is other evidence to support the correctness of the identification)

Answer 101

A) No- the prosecution counsel has conceded that the individual identifications are of poor quality (It is permissible for two or more disputed identifications to be treated as mutually supportive of each other. Identification by two witnesses carries more weight than one. However, each separate identification must be of a quality that can safely be left to the jury to assess. If prosecution counsel is conceding that all of the identifications are of poor quality, they cannot be viewed as being mutually supportive.)

Answer 102

B) 10 business days before trial (Correct. This time limit is contained on the magistrates' court 'Preparation for Effective Trial' form and not within any specific criminal procedure rule, although Criminal Procedure Rule 1.1 contains the 'overriding objective' which includes dealing with cases efficiently and expeditiously)

Answer 103

A) As a preliminary issue (Correct. In a magistrates' court, any application under s.76 should be dealt with as a preliminary issue)

Answer 104

C) An application under s.78 is made in a magistrates’ court (Correct. If the application in a magistrates' court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage)

Answer 105

D) The counts the defendant faces (The prosecutor will usually also hand to the jury a copy of the indictment)

Answer 106

C) The court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict (This reflects the test in the Criminal Procedure Rules and the principles set out in R v Galbraith)

Answer 107

B) What the meaning of intention is (This is a matter for the judge to direct the jury on)

Answer 108

B) The defendant taking into consideration the advice of any legal representative the defendant has (If the defendant is not legally represented the judge will explain the defendant’s right to give or not give evidence to allow an informed choice)

Answer 109

C) Jury selection and swearing in the jury, judge’s preliminary instructions to the juryprosecution opening speech, prosecution evidence, defence evidence, prosecution closing speech, defence closing speech, judge’s summing up, jury retire, verdict. (This best reflects Crown Court trial procedure inCriminal Procedure Rules Part 25)

Answer 110

B) How to return a majority verdict (When the jury first retires the jury must be directed that their verdict must be unanimous (in respect of each count and each defendant). If a time were to come when the court could accept a majority verdict the jury would be invited to come back into the court room and would be given further directions)

Answer 111

B) On the day of trial, before the trial starts (Correct. While the application can be dealt with at the PTPH, at a hearing on a day at some point between PTPH and trial or on the day of trial before the trial starts, the latter is most common)

Answer 112

B) Giving evidence in private (Correct. Testifying through an intermediary and aids to communication are not available for witnesses who are eligible for special measures due to being in fear)

Answer 113

C) From guilty to not guilty when the defendant has been properly represented Correct. While the judge has a discretion in this circumstance, a court would invariably reject the defendant’s application to change plea as proper advice has been given to the defendant, no undue pressure has been exerted on the defendant and the defendant’s plea was unequivocal.

Answer 114

A) Section 98 Criminal Justice Act 2003 Correct. Section 98 states: ‘References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which- has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence.’ ‘Misconduct’, according to section 112, means: ‘the commission of an offence or other reprehensible behaviour’.

Answer 115

A) Irrelevant behaviour Correct. For bad character to be admissible, it must be behaviour which falls within s.98(a) or (b) and it must be relevant.

Answer 116

A) No Correct. This is an example of misconduct connected with the investigation or prosecution of the offence, so not bad character evidence under the definition in s.98 Criminal Justice Act 2003.

Answer 117

B) The Crown may rely on bad character as conclusive proof the defendant is guilty Previous convictions and reprehensible behaviour demonstrate bad character but are not conclusive proof the defendant is guilty. All of the other options are examples of the uses the Crown may have for bad character. However, bad character can be admitted for any relevant purpose. Typically this means that it goes to an issue in the case, or is evidence bearing on credibility. The judge should direct the jury on the purpose for which the evidence may/may not be used (ie, propensity or credibility), and give a direction that: (i) warns the jury of the danger of placing undue reliance on previous convictions; (ii) Stresses that bad character cannot bolster a weak case, or prejudice a jury against the defendant; (iii) Emphasises that the jury should not infer guilty from the existence of convictions.

Answer 118

E) Section 101(1)(b): Evidence adduced by the defendant Correct. There is no need to make an application to the court for leave to adduce evidence through this gateway. There is also no need to make an application to the court for leave to adduce evidence under section 101(1)(a)- agreement of the parties. The remainder of the gateways of admissibility (s.101(1)(c)-(g)) require an application to the court for leave to adduce evidence.

Answer 119

D) Section 101(1)(e): Important matter in issue between the defendant and a co-defendant Correct. By definition evidence that comes in through this gateway is not prosecution evidence and s.78 PACE Act 1984 does not apply to it.

Answer 120

A) 3 Correct. These can be relied on by the prosecution and defence. They apply to witnesses and other parties not called to give evidence. The three gateways in s.100(1) are: (a) if it is important explanatory evidence; (b) if it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole; or (c) if all parties agree to the evidence being admissible.

Answer 121

A) s.100(1)(c)- Agreement of the parties Correct. This gateway to admissibility of non-defendant bad character evidence does not require leave of the court.

Answer 122

A) Any party Correct. Evidence under s.100 Criminal Justice Act 2003 can be adduced by any party.

Answer 123

D) At the first hearing in an indictable only offence Correct. The first hearing for an indictable only offence is when the case is sent to the Crown Court and no plea is taken. While the timing of a bad character application is a matter of judgment, the other options are common timings.

Answer 124

A) CrimPR Part 21 (Correct. The party seeking to introduce evidence of bad character must serve a notice on the court officer and each other party. The court has an unfettered discretion to vary the notice requirements)

Answer 125

A) The judge should exercise discretion under s.78 PACE 1984 to exclude the evidence Correct. The Criminal Justice Act 2003 does not contain a specific method of excluding bad character evidence under this gateway. The defence either have to persuade the court that the statutory test is not met or that the judge should exercise their discretion under s.78 PACE 1984 to exclude the evidence.

Answer 126

E) We can make a submission of no case to answer. The judge will have to consider whether the prosecution evidence taken at its highest is enough on which a jury can safely convict. If we are successful the court will acquit. Correct. You can make a ‘half time submission’ of no case to answer. See guidance under R v Galbraith [1981] 73 Cr App R 124. The other answers while plausible are incorrect: If there is no evidence against your client then the judge must acquit (this is not a discretion). The jury does not hear an application of no case to answer. When deciding if there is no case to answer, the judge will not simply consider whether there is any evidence against your client as this is not the correct test. A submission of no case to answer would always be made after all of the prosecution evidence has been heard. It would not be made after the defence case.

Answer 127

D) The identification evidence is unsupported and the prosecution case wholly depends on the correctness of the identification so the judge must give a special direction to the jury. Correct. The judge must give a Turnbull direction. Failure to do so is likely to mean the conviction would be quashed on appeal. The other answers while plausible are incorrect: The judge might consider withdrawing the case from the jury but they are not obliged to do so. It is not necessarily the case that the ID evidence is weak (that is a matter for the jury), instead a Turnbull direction deals with the possibility of mistaken identification. A Turnbull direction must be given in this situation The Judge does not decide on the strength or weakness but instead gives a Turnbull direction.

Answer 128

D) The Crown Court. Due to the separation of the tribunal of fact and law, if the confession evidence is excluded, then the jury will not hear the prejudicial evidence. Correct. As the facts state that the confession evidence is the only compelling evidence, if this is excluded by the judge (and you are told that is is likely to happen), then the jury will not hear this prejudicial evidence and your client will likely be acquitted as the rest of the case is weak. The other answers while plausible are incorrect: While it is true that there are higher acquittal rates in the Crown Court, it does not address the specific facts of your client's case. The tribunal of fact and law are not separated in the magistrates' court and the magistrates will have to put the confession 'out of their minds' but will no doubt be subconsciously prejudiced by it. Generally speaking, if the case is retained by the magistrates' court, the sentence will be lower, however, if the court deems its sentencing powers are insufficient, the court should commit the case to the Crown Court for sentence and as such, it will not always be lower. A Crown Court Judge would not need to put the confession ‘out of their mind’ because they are not the judge of fact. The jury will not hear about the confession.

Answer 129

D) The judge will direct the jury regarding the law. In relation to self-defence she will explain that burden is on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence Correct. The jury is obliged to follow the judge’s directions on the law, and the explanation of the law here is correct. The other answers while plausible are incorrect: It is not for the jury to interpret how the law should be applied. They are the tribunal of fact not law. The judge must direct the jury as to the law if a defence has been raised. The burden to prove self-defence is on the prosecution NOT the defence. The judge will make directions regarding the law.

Answer 130

E) The judge should allow the case to go to the jury but give a Turnbull warning. Correct. A Turnbull direction should be given when the case against the accused depends wholly or substantially on the correctness of the identification – Turnbull [1977] 63 Cr App 132. The other answers while plausible are incorrect: The Judge is unlikely to exclude the evidence as this is unlikely to satisfy the provisions of Section 78 PACE 1984; the witness is not casting doubt on her own eye witness evidence by, for example, indicating that she is not sure that her evidence is correct or by disowning the original identification. A Turnbull warning should be given as the case wholly or substantially depends on the correctness of the identification evidence of this witness. In addition, the witness did not know the Defendant and makes it more likely that a Turnbull direction should be given. The case should not be withdrawn from the jury. The witness has not accepted, for example, that she cannot be sure of her identification, but has given evidence that her identification was obstructed and she was some distance away. The Judge cannot simply inform the jury that the ID evidence is weak as they are the tribunal of fact. The Judge must deliver a warning as per Turnbull.

Answer 131

C) Allow the prosecution to adduce evidence of D’s bad character, to correct the false impression they have created by suggesting they are honest and trustworthy Correct. The evidence is admissible under section 101(1)(f) to correct a false impression given by D. Section 105(1)(a) mentions the defendant ‘making an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’

Answer 132

E) In the Crown Court, a defence statement must be served within 28 days of the prosecution complying, or purporting to comply, with its duty of initial disclosure of unused material. A failure to do so allows the court to draw such inferences as appear proper in deciding whether the defendant is guilty. Correct. In the Crown Court, a defence statement is compulsory, so once initial disclosure of unused material has been made, a defence statement must be filed and served by the defence within 28 days.

Answer 133

D) The prosecutor has a duty to disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. Therefore, the defendant is entitled to disclosure of any material which meets this test. Correct. The Criminal Procedure and Investigations Act 1996 imposes a duty on the prosecution to review the material and disclose any prosecution material which might undermine the prosecution case or assist the case for the defence. This applies whether the case is being tried in the magistrates’ or Crown Court and the duty to disclose commences before the defence statement is served when the defendant pleads not guilty in the magistrates’ court.

Answer 134

E) The next hearing will be the Plea and Trial Preparation Hearing which should take place within 28 days. The defendant will be arraigned, and the matter will be allocated a trial date. Correct. The defendant will have a PTPH to enter their plea, set a trial date and set directions to ensure effective case management. This should take place within 28 days.

Answer 135

E) Make an application to adduce the evidence as important explanatory evidence to be admitted through the s.101(1)(c) gateway. This is the best answer. This is evidence without which the jury will find it difficult to understand the rest of the case. These parties have a history, which provides a context for this alleged offence. Without it, the jury would be presented with an incomplete picture. Review your materials on defendant bad character, in particular explanatory evidence.

Answer 136

A) A statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated Correct. Hearsay evidence is defined in s.114 and s.115 Criminal Justice Act 2003. If the advocate wants to use evidence of the out of court statement to prove that what was said was true and the apparent purpose of the maker of the statement was to cause another person to believe the matter stated then it is a hearsay statement and can only be admitted by one of the ‘gateways’.

Answer 137

C) Where the out of court statement made is made by a person, who intended a machine to operate on the basis that the matter is as stated, which is tendered in evidence as proof of what was said was true Correct. This reflects the definition of hearsay evidence in s.114 and s.115 Criminal Justice Act 2003. The other options were all examples of classes of original evidence.

Answer 138

R v Twist Correct. Ascertaining whether communications are hearsay or not has proved difficult in practice, so the three stage test in R v Twist has been used.

Answer 139

C) Identify the relevant question in the communication This is not part of the three stage test from R v Twist. If the communication is a question such as a request for drugs, it is not a statement at all, so hearsay does not arise.

Answer 140

A relevant statement adduced for some reason other than to prove that the statement is true Correct. Original evidence is admissible provided it is relevant and may be admitted as evidence proving a fact in issue.

Answer 141

Hearsay in which the maker of the statement is identified Correct. Section 116 Criminal Justice Act 2003 cannot be used to introduce anonymous hearsay or evidence that would have been inadmissible such as bad character that is not admissible under ss.100 or101.

Answer 142

Unfitness relates to the ability of a witness to give evidence in court Correct. Unfitness to be a witness under section s.116(2) Criminal Justice Act 2003 because of their bodily or mental condition refers not to their fitness to physically attend court but to their ability to give evidence once there. There is no requirement that the condition which makes a person unfit is a medical condition.

Answer 143

If the statement’s reliability is doubtful Correct. The court has an exclusionary discretion in relation to business etc documents to exclude if it is satisfied that the statement’s reliability is doubtful (s.117(6) and(7) Criminal Justice Act 2003). The other options were all examples of situations where hearsay may be admissible: in the interests of justice (s.114(1)(d)), if the witness is unavailable (s.116) or if it falls under a common law exception (s.118)

Answer 144

Common law Correct. Notice is not required under the common law exceptions preserved in s.118 Criminal Justice Act 2003.

Answer 145

As soon as reasonably practicable Correct. The prosecution must serve notice not more than 20 business days after a not guilty plea in the magistrates’ court or 10 business days after a not guilty plea in the Crown Court.

Answer 146

Previous statements of a witness Correct. The other options were all common law exceptions preserved under the Criminal Justice Act, s.118.

Answer 147

Spouse/ civil partner for the defendant Correct. A spouse/ civil partner can be compelled to give evidence for their spouse/ civil partner.

Answer 148

Defendant Correct. The defendant is not competent for the prosecution but are on their own behalf or on behalf of a co-defendant.

Answer 149

Where the expert’s opinion and all other evidence leads inevitably to only one conclusion Correct Correct. However, generally the jury is not obliged to accept expert evidence, even if it is not contradicted.

Answer 150

Cross-examination Correct. Advocates may ask questions that contain factual statements that indicate what answer the advocate wants the witness to make. Leading questions can be asked in examination in chief and re-examination if the matter is not in dispute.

Answer 151

A witness called by a party who gives evidence not in accordance with their statement damaging to the party calling them Correct. In these circumstances, the witness may be called to give evidence and if and when the witness starts to contradict the evidence given before (i.e. in their written statement) the party can ask for the statement to be put to the witness, and the witness can effectively be cross-examined by their own Counsel with the purpose of establishing the truth of the earlier account.

Answer 152

Finality on collateral matters Correct. The courts are more lenient in allowing evidence to be admitted on the 'collateral' issue of a witness being 'biased or partial' and even when a witness denies such, counter-evidence will be admissible. The other options were all examples of the use of previous consistent statements in examination in chief.

Answer 153

If the court accepts that the witness will not give evidence through fear, then it will consider whether admission of the statement will result in unfairness to the defendant as he will be unable to challenge the statement, and whether special measures might be used to alleviate the witness’s fears. Correct. A statement can be read as hearsay under section 116 of the CJA 2003. Section 116 (4) states: Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard: a. to the statement's contents, b. to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), c. in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person, and d. to any other relevant circumstances.'

Answer 154

A and B are competent and compellable for the prosecution Correct. A and B are ordinary witnesses and competent and compellable. D’s spouse S is competent to give evidence for the prosecution. See s.53(1) Youth Justice and Criminal Evidence Act 1999 and s.80(1) Police and Criminal Evidence Act 1984 but cannot be compelled as the offence is not specified under s 80 PACE 1984. D’s spouse is competent and compellable for the accused provided not on trial themselves. Although R is 14, age is not the determining factor of whether they are competent; the only test is whether R can: (i) understand the questions; and (ii) can give comprehensible answers

Answer 155

The statement will be admissible as the witness is unavailable. The defence will seek to exclude it under s 78 PACE. Correct. The complainant’s statement is prima facie admissible as they are unfit to be a witness, see s.116(2)(b) Criminal Justice Act 2003. The defence can challenge the admission on the basis it would have an adverse effect on the fairness of the case. The other answers were either incorrect or not the best answer. There are circumstances in which statements not made in oral evidence can be admissible without the agreement of the defence or leave of the judge.

Answer 156

This evidence is not hearsay but is admissible as it is relevant to the defence Correct. The purpose of repeating the statement at trial is to support the defence, - ie. going to state of mind and not to establish the threat was true. Hearsay does not apply . The evidence is admissible as relevant as it gives a reason why D committed the offence

Answer 157

Did you fall over when hit? Correct. This is a leading question. It assumes that the defendant was hit. The other questions are all acceptable given the agreed facts between the defence and prosecution

Answer 158

Protection of the police. It is not protection of the police but protection of the public to which s 57 Sentencing Act 2020 refers.

Answer 159

The court proceeds to sentence the defendant on the prosecution version on the facts Correct. If the court do not deem it absurd, they move on to consider whether it will make a material difference to sentence if the court sentences on the defence version instead of the prosecution version of the facts.

Answer 160

Yes, if the magistrates’ commit the defendant for sentence Correct. In this situation the defendant can be sentenced in the magistrates’ court but the magistrates’ may commit the defendant to the Crown Court for sentencing.

Answer 161

Be a statutory aggravating factor. Correct. Previous convictions are not considered when considering culpability in relation to the offence, they are an aggravating factor.

Answer 162

Maximum 1/4 Correct. However, it is perfectly acceptable for the court to give less credit should it think it appropriate.

Answer 163

The court must not pass a custodial sentence unless the offence was so serious that neither a fine nor a community sentence can be justified. Correct. This most accurately reflects the negatively phrased wording in s 230 SA 2020.

Answer 164

Four weeks Correct. If the magistrates' court decides to adjourn sentence then they are bound by statute as to how long an adjournment may be: • for a defendant on bail, it's four weeks; or • for a defendant in custody, it's three weeks. Note, however, there is nothing to prevent the court from adjourning sentence more than once, and that post-conviction, there is no issue in respect of custody time limits.

Answer 165

After the conclusion of the trial of the co-defendants, so that all of the pleas and verdicts can be considered together Correct. Where the pleas are mixed and there needs to be a trial, the court will likely wait until the conclusion of it to sentence any defendants who have pleaded guilty or been found guilty.

Answer 166

Yes, if the magistrates’ committed the defendant for sentence Correct. In this situation the defendant can be sentenced in the magistrates’ court but the magistrates’ may commit the defendant to the Crown Court for sentencing

Answer 167

He will be sentenced in the Crown Court as the offence is indictable only Correct Correct – robbery is an indictable only offence and therefore it must be sent to the Crown Court for sentence.

Answer 168

It must take place in the Magistrates’ Court Correct – it is an individual summary only offence and can only be sentenced in the magistrates’ court.

Answer 169

Three years Correct. As an order can only be three years long, the requirements need to be possible to complete within that timescale.

Answer 170

The court must not make a community order unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it was serious enough to warrant the making of such an order. Correct. This most accurately reflects the negatively phrased wording in s 204 SA 2020.

Answer 171

Fining the offender up to £5000. Correct. The maximum fine is £2,500. The court can also deal with the offender by amending the order or revoking the order and re-sentencing the offender to anything that the court could have sentenced the offender to originally. The court has the power to impose a custodial sentence for a non-imprisonable offence (of upto 6 months) only if the offender willfully and persistently breached the requirements of the community order

Answer 172

The maximum length of a suspended sentence in the Crown Court is one of 2 years custody, suspended for an operational period of 2 years Correct- The custodial term is how long a prison sentence the offender would have received but for it being suspended. The operational period is how long the custodial term is suspended for. This must be between six months and two years.

Answer 173

The minimum term is three years for a third offence of domestic burglary Correct- The other correct minimum terms here are seven years’ imprisonment for a third Class A drug trafficking offence; six months for a second offence of possessing a weapon.

Answer 174

The defendant may be released from when they have served 4 years in custody. Correct- a defendant is eligible to apply to the parole board for release at the 2/3 point of their custodial term. They must in any event be released once the custodial term has been served.

Answer 175

Bind over Correct. A bind over, however, stands apart from the other sentencing options in that it can be, and often is, imposed on someone instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case.

Answer 176

Absolute discharge Correct. It is in effect no punishment at all since there is nothing that the defendant must do or not do to comply with it, there is no way of breaching it, no conditions attached to it and it is 'spent' immediately for the purposes of the Rehabilitation of Offenders Act.

Answer 177

If he is found guilty and the magistrates determine their sentencing powers are insufficient then he will be sent to the Crown Court for sentencing. The Crown Court will have the same sentencing powers as if he had been tried in that court Correct. Even though the magistrates' court accepted jurisdiction the matter can be remitted to the Crown Court for sentence if having heard the evidence they believe their sentencing powers are insufficient. The Crown Court is not limited and can award any sentence available for those offences. The other answers while plausible are incorrect: - He will not definitely be sentenced in the magistrates' court. The court can send to the Crown Court for sentencing if having heard the case they conclude their powers are not sufficient. - An either way offence does not necessarily have to be sent to the Crown Court for sentencing - If a case is sent to the Crown Court for sentencing then the Crown Court is not restricted to the sentencing powers of the magistrates. (Of course this would defeat the object of sending in the first place). - The number of offences does not dictate that an either way offence must be sent to the Crown Court for sentencing.

Answer 178

The court will sentence your client for the new offence and may resentence him for the original offence. Correct. The key date is the date of the new offence which falls within the 12 month conditional discharge (it is 10 months from the original sentence). The court may resentence him, but it is not an obligation. The other answers whilst plausible are not correct: - The original sentence has not expired as the offence took place after 10 months. Key is the date of the offence, not when the court disposes of the matter. - A conditional discharge should not be confused with a suspended sentence - it is not activated as such. - The court 'may' re-sentence for the original but they are not bound to or bound to a particular sentence. - Breach of a conditional discharge might be an aggravating factor, but the court would also consider re-sentencing for the original offence or offences.

Answer 179

The judge is likely to order a Newton Hearing Correct. This answer reflects the position when the judge does not find the basis of plea absurd or equivocal but the Defendant’s basis would materially affect sentence. The other options were incorrect. Sentencing on D’s account without enquiry is unlikely to occur when the difference in the case for the Defence and Prosecution is likely to create a material difference in sentence. The judge is likely to order a trial in the event of an equivocal plea, which does not arise on this scenario. Sentencing on the Prosecution account is unlikely unless D’s case is considered absurd.

Answer 180

If you commit any offence during the operational period of two years then some of all of your 18 month suspended sentence can be activated Correct. There is an assumption that the suspended sentence will be activated (whole or in part) unless it is unjust to do so. The other answers whilst plausible are not correct: - It is not just during the supervision period that a further offence would activate the sentence. Of course, during supervision the client would be expected to work with probation and failure to do so might result in a breach of the suspended sentence. - The court does not resentence - i.e. look again at the offence - but the sentence is activated instead. - An offence is unlikely to result in just a warning from probation (whereas a breach of license conditions would). There is an assumption that it would be activated unless unjust to do so. - It is very likely that a further offence would result in the activation of a suspended sentence.

Answer 181

A reduction is at the discretion of the judge and will be a maximum of 1/10. Correct. The judge has a discretion to grant up to a 1/10 discount on sentence for a guilty plea on the first day of trial. However, the exact discount will depend on the case and the circumstances of the plea. The other answers whilst plausible are incorrect: - A slight reduction might be available during trial, but she could not expect to plead guilty shortly before conclusion of the trial. - The judge is not obliged to give the full 1/10 discount for the guilty plea, and might award a lower discount or non at all. - A discount of up to 1/4 would be available after the first stage of proceedings, but thereafter on a sliding scale with a maximum of 1/10 on the day of trial. - Discount is available on the first day of trial. This reduces waste in terms of time and resources by offering a defendant an incentive not to run a trial.

Answer 182

In a magistrates’ court for first appearance, trial and sentencing. Correct. Common assault is a summary only offence which will be dealt with in a magistrates’ court in its entirety.

Answer 183

A defendant must be present at the first hearing in relation to a summary only offence. Correct. The defendant does not need to be present. It is possible to plead guilty by post. The court can, and will often, proceed in the absence of the defendant for more minor offences.

Answer 184

Bad character evidence, hearsay evidence, special measures, disclosure, expert evidence, and editing transcripts of interviews. Correct. These are not the only directions but reflect the standard directions which could be made

Answer 185

When the defendant is represented. Correct. The prosecution is also entitled to make a closing speech if the defendant has introduced evidence other than their own, whether represented or not.

Answer 186

Call the witness. Correct. The defence will ask that the witness attend and that the area of dispute is put to them in cross-examination.

Answer 187

Before retiring to consider their verdict, the legal adviser will advise lay magistrates in open court on any matters of law that are required. Correct. The legal advice must be provided in open court.

Answer 188

An application to the magistrates’ to set the conviction aside Correct. Section 142 MCA 1980 enables an accused who was convicted in a magistrates’ court (whether he pleaded guilty or was found guilty) to ask the magistrates to set the conviction aside. The test is whether it is in the interests of justice that the case should be head again. The application can be considered by the same magistrates who convicted the accused but if the conviction is set aside, then the case is reheard by different magistrates.

Answer 189

Against sentence Correct. A defendant can generally only appeal against conviction if found guilty after a trial unless the defendant can demonstrate that their plea was equivocal. See s.108 of the Magistrates’ Courts Act 1980.

Answer 190

Promptly and in any event within three months after the grounds arose Correct. A failure to lodge an application for judicial review promptly can lead to the application being rejected even when lodged within three months.

Answer 191

Appeal from a magistrates’ court trial to the Crown Court Correct. The prosecution cannot appeal via this route. Its options of redress are limited to challenges to the High Court by way of case stated or judicial review.

Answer 192

Varying or rescinding a sentence or other order Correct. Section 155(1) Powers of Criminal Courts (Sentencing) Act 2000 empowers a judge to vary or rescind a sentence or other order within 56 days of it being made.

Answer 193

Within 28 days of conviction Correct. This time limit can be extended but it is a matter for the Court’s discretion on reviewing the reasons for the delay.

Answer 194

A direction that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the appellant's sentence Correct. These may be imposed if the application is considered wholly without merit.

Answer 195

The acquittal stands Correct. The power of the Attorney-General to ask for the opinion of the Court of Appeal is intended to clarify the law, so the acquittal stands, whatever the Court of Appeal’s decision.

Answer 196

28 days It is a matter for the Attorney General to consider whether leave should be sought for a reference and the time limit for doing so is 28 days.

Answer 197

A prosecution appeal against a Crown Court trial ruling that brings the case to an end Correct. Rulings such as staying proceedings as an abuse of the court’s process and rulings of no case to answer for example. The provision does not apply to rulings to discharge the jury.

Criminal Litigation MCQS Flashcards

(221 cards)