Trial MCQs

Question 1

You prosecute Carlos who faces trial for arson. It is alleged that he set fire to a laboratory that is involved with animal testing.

The police tell you that they have evidence that (a) Carlos’s second cousin is a member of an animal rights organisation; and (b) Carlos’s sister has a number of pet rabbits.

The police want to know if this evidence can be used against Carlos at his forthcoming trial.

Which of the following most accurately states the position in relation to this evidence?

As long as there is some basis for arguing the evidence is relevant there is no power to exclude that evidence even if the judge is of the view that no reasonable jury could rely on it.

It is a fundamental rule of evidence that, in order to be admissible, evidence must be relevant. Any attempt to adduce the evidence in question is likely to result in an application by the Defence to exclude it.

The prosecution are entitled to adduce the evidence in question unless the Defence successfully make an application to exclude it under S.78 PACE 1984

It is a fundamental rule of evidence that the prosecution may adduce such evidence as they think fit. It is for the jury to determine what weight should be attached to such evidence. The defence have no right to object to evidence simply on the grounds of relevance.

Answer 1

It is a fundamental rule of evidence that, in order to be admissible, evidence must be relevant. Any attempt to adduce the evidence in question is likely to result in an application by the Defence to exclude it.

This is the correct answer. The fundamental rule is that, subject to the specific rules that govern the exclusion of evidence for particular reasons, evidence that is sufficiently relevant to the facts in issue is relevant and evidence which is irrelevant or insufficiently relevant should be excluded (see commentary at Blackstone F1.11).

Question 2

After a lengthy investigation, the police attend at Jan’s house to arrest him for money laundering. Jan is spoken to by the police who see him outside the house on his way to work. They ask him to confirm his identity which he does. They then proceed with a line of questioning regarding his involvement in the offences before cautioning him on suspicion of money laundering and arresting him.

In due course Jan is charged and due to stand trial athe Crown Court. His instructions are that he does not accept the comments attributed to him during the questioning prior to his arrest.

You make an application under S.78 PACE 1984 to exclude the evidence obtained during the questioning because the PACE Codes of Practice were not complied with including the fact that Jan was not cautioned prior to the questioning

Which of the following best describes the approach the court will take?

The jury must disregard the evidence if they are of the view that, having regard to all the circumstances, including the failure to comply with the Codes of Practice prior to questioning, that attaching any weight to the evidence would have such an adverse effect on the fairness of the proceedings that it should be disregarded.

The court must refuse to allow the evidence to be given if it is of the view that, having regard to all the circumstances, including the failure to comply with the Codes of Practice prior to questioning, that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it.

The court may refuse to allow the evidence to be given if it is of the view that, having regard to all the circumstances, including the failure to comply with the Codes of Practice prior to questioning, that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it.

The jury may disregard the evidence if they are of the view that, having regard to all the circumstances, including the failure to comply with the Codes of Practice prior to questioning, that attaching any weight to the evidence would have such an adverse effect on the fairness of the proceedings that it should be disregarded.

Answer 2

The court may refuse to allow the evidence to be given if it is of the view that, having regard to all the circumstances, including the failure to comply with the Codes of Practice prior to questioning, that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it.

This is the correct answer. It reflects the wording of S.78. The court has a discretion (ie “may refuse”) to admit such evidence (although if the court is of the view that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it then it would be difficult for it to exercise its discretion in any other way)

Question 3

You are instructed to defend James who faces a charge of assaulting the complainant, Peter, thereby occasioning him actual bodily harm. The prosecution allege that James punched Peter in the face during an altercation in a bar. The blow caused a broken nose. They further allege that this was a completely unprovoked attack. James accepts that he punched the complainant and caused the injury but claims that he did so in self-defence because he believed that Peter was about to attack him.

Your instructing solicitors ask you to provide advice on how the burden of proof will operate in this case.

Which of the following statements is the most accurate?

Once the prosecution have proved all other essential elements of the offence then the jury must convict unless the defence prove on the balance of probabilities that the defendant acted in self defence.

Once the prosecution have proved all other essential elements of the offence then the jury must convict unless the defence prove beyond reasonable doubt that the defendant acted in self defence.

The Defence must call some evidence to support the defendant’s assertion that he acted in self-defence. It is then for the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defence.

The defence have no evidential burden at all. It is for the prosecution to prove that the defendant was not acting in self-defence whether or not the defence call any evidence to support self-defence.

Answer 3

The Defence must call some evidence to support the defendant’s assertion that he acted in self-defence. It is then for the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defence.

Correct. The defence have only an evidential burden. This means that they only have to adduce some evidence that supports the defence of self-defence. Once this has been done then the prosecution must disprove it to the usual standard ie beyond reasonable doubt.

Question 4

Your client is facing trial in relation to an offence of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. He deliberately pushed someone into the path of a cyclist. The victim fell to the ground and suffered serious head wounds. The defendant claims that it was another person who pushed the victim and that this is a case of mistaken identity.

The burden and standard of proof in the above scenario is best summarised as follows:

The burden of proving the elements of the offence rest upon the prosecution who must prove them beyond reasonable doubt, however where your client wishes to rely upon his account that he did not push the victim, the onus shifts to the defence to prove beyond reasonable doubt.

The burden of proving each element of this offence rests with the prosecution who must prove them beyond reasonable doubt. The defence does not have to prove anything.

The burden of proving the elements of the offence rests upon the prosecution who must prove them beyond reasonable doubt, however where your client wishes to rely upon his account that he did not push the victim, the onus shifts to the defence to prove on the balance probabilities.

The burden of proving the elements of the offence rests with the prosecution who must prove them on a balance of probabilities. The defence does not have to prove anything.

Answer 4

The burden of proving each element of this offence rests with the prosecution who must prove them beyond reasonable doubt. The defence does not have to prove anything.

Question 5

Joe is charged with possessing heroin with intent to supply. The prosecution allege that, during a lawful search of Joe’s home address, they found a large quantity of heroin hidden in bedside drawer in one of the bedrooms in the house. The prosecution also allege that when the police asked him whose bedroom it was he replied “It’s my bedroom. I live alone and the drugs are mine but they’re for my personal use”.

Joe’s denies any knowledge of the drugs, claiming that the police must have planted them in the drawer and he denies making the comment attributed to him. The police record of the conversation makes no reference to a caution being administered.

Joe is due to stand trial and you are asked to advise in relation to an application to exclude the evidence of the alleged comment made by Joe.

Which of the following best describes the position?

The defence may make an application to exclude the evidence under S.78 PACE 1984. The application must be made in the absence of the jury and before the prosecution adduce the evidence.

The defence may make an application to exclude the evidence under S.78 PACE 1984. The application must be made before the jury are sworn at the beginning of the trial.

The defence may make an application to exclude the evidence under S.78 PACE 1984. The application must be made after the evidence has been adduced so that it is clear exactly what the evidence is from both sides before the judge can make an informed decision on its reliability.

The defence may make an application to exclude the evidence under S.78 PACE 1984 but it must be made in advance of the trial date and only if the appropriate period of notice has been given to the Prosecution in accordance with the Criminal Procedure Rules.

Answer 5

The defence may make an application to exclude the evidence under S.78 PACE 1984. The application must be made in the absence of the jury and before the prosecution adduce the evidence

This is the correct answer. The wording of S.78 includes “…the court may refuse to allow evidence on which the prosecution proposes to rely…”. Accordingly the application must be made before the evidence is given. Furthermore, such an application would always be made in the absence of the jury so that, if the judge rules the evidence inadmissible, the jury will never be aware of it.

Question 6

Ben is charged with assault occasioning actual bodily harm contrary to section 47 Offences Against the Person Act 1861. The allegation is that he headbutted and broke the nose of a member of the opposing local football team after an argument on the pitch. Ben denies the allegation.

At Ben’s first appearance at a magistrates’ court, what advice will you give him about where his case will be tried?

It must be tried in a magistrates’ court

It must be tried in the Crown Court

It may be tried in a magistrates’ court, if the magistrates accept jurisdiction but if he is found guilty he cannot be committed by the magistrates to the Crown Court for sentencing

It may be tried in a magistrates’ court, if the magistrates accept jurisdiction but if he is found guilty he can be committed by the magistrates to the Crown Court for sentencing

Answer 6

It may be tried in a magistrates’ court, if the magistrates accept jurisdiction but if he is found guilty he can be committed by the magistrates to the Crown Court for sentencing

Correct, so long as Ben does not elect to have his trial in the Crown Court.
The other options were incorrect because:
· as s.47 OAPA 1861 is an either-way offence it can be tried in either a magistrates’ court or the Crown Court; and
· the magistrates can commit Ben for sentence to the Crown Court following conviction for an either-way offence where circumstances require this i.e. if they consider their maximum powers of punishment to be insufficient, having regard to the seriousness of the offence.

Question 7

Sonia is facing trial in the magistrates’ court for criminal damage worth £350. Sonia is on unconditional bail and fails to turn up for her trial as she has slept in.

The witnesses have attended court and the prosecution are ready to proceed.

Which of the following best sets out what the court should do about Sonia’s failure to attend?

The court should issue a warrant for Sonia’s arrest and adjourn the trial for a future date to be confirmed once she has been arrested.

The court should issue a witness summons to get Sonia to court.

The court should adjourn the case until Sonia can attend.

The court should proceed with the trial in Sonia’s absence.

Answer 7

The court should proceed with the trial in Sonia’s absence.

Correct – the magistrates should proceed with the trial in the defendant’s absence unless there is a good reason to show that it would be contrary to the interests of justice to do so. Here, Sonia has slept in which would not amount to a good reason and the court should proceed in her absence.

Question 8

Jemma is on trial for common assault against her friend Amy. It is alleged that they were out drinking together and then got a taxi home together. The prosecution’s case is that when they were outside Amy’s house, Jemma slapped Amy around the face leaving a red mark on her cheek.

Amy has provided a witness statement to confirm the prosecutions version of events.

The taxi driver dropped the girls at Amy’s house and drove off. The taxi driver has given a witness statement to state that both girls appeared to be drunk and were arguing about something in the back of the taxi. The taxi driver is out of the country at the date of the trial and will be unable to attend court.

Jemma has provided an account in her police interview to state that the girls had been arguing and that she had slapped Amy in self-defence because Amy had pulled her hair.

Which of the following statements best reflects the position that is likely to be taken regarding the witness evidence at the trial?

The prosecution will read out the statement of Amy and the taxi driver as s.10 CJA 1967 admissions as the evidence can be agreed between the parties.

The prosecution will have to call Amy to give live evidence, but the taxi driver’s evidence is likely to be read out as a s.9 CJA 1967 admission as the taxi driver is not available to attend court.

The prosecution will have to call Amy to give live evidence, but the taxi driver’s evidence is likely to be read out as a s.10 CJA 1967 admission as the evidence can be agreed between the parties.

The prosecution will read out the statements of Amy and the taxi driver as s.9 CJA 1967 admissions as the taxi driver is not available to attend court.

Answer 8

The prosecution will have to call Amy to give live evidence, but the taxi driver’s evidence is likely to be read out as a s.10 CJA 1967 admission as the evidence can be agreed between the parties.

Correct – Amy’s evidence is in dispute so the prosecution will need to call her to give live evidence in order for the defence to be able to cross examine her on her version of events. The taxi driver’s evidence is not in dispute as he does not see the alleged assault so this evidence can be agreed as a formal admission under s.10 CJA 1967.

Question 9

You represent Camilla who is on trial for criminal damage. It is alleged that she smashed the window of a car parked on the street outside a shop. The incident happened at night. The only witness is the shopkeeper who provided a description of Camilla who was a customer of his.

There is no other evidence against Camilla.

On the day of trial, the witness states in evidence that he is not sure if it was Camilla that he saw smashing the window and that thinks he had provided her description because she had been in his shop buying items earlier that day. He admits that he did not get a very good look at the person who caused the damage.

What is the best course of action for you to take with regards to Camilla’s case?

You should allow the case to continue knowing that the court must convict as the prosecution have not raised sufficient evidence

You should make an application of abuse of process as the prosecution have not raised sufficient evidence for the court to be able to properly convict.

You should make a submission of no case to answer as the prosecution have not raised sufficient evidence for the court to be able to properly convict.

You should make an application under s.78 PACE as this evidence would have an adverse effect on the fairness of proceedings.

Answer 9

You should make a submission of no case to answer as the prosecution have not raised sufficient evidence for the court to be able to properly convict.

Correct – Once you have heard the evidence that has been given by the witness it is clear that there is insufficient evidence against Camilla for the court to safely convict her of the offence so you should make a submission of no case to answer.

Question 10

Oliver is on trial for theft from a small shop. It is alleged that whilst the owner was in the back of the shop, Oliver entered and picked up a drink and chocolate bar and ran out of the shop without paying. The only evidence served on the defence against Oliver is from another customer who was in the shop at the time and said that she saw Oliver commit the offence. The customer is an elderly lady who provided a description of the person to the police. She was asked to attend an identification procedure at the police station which was delayed by 12 weeks as she had been in hospital.

When she attended the police station for the video identification procedure she confirmed that she was confused and couldn’t really remember the day in question or the events that had happened in the shop.

The police insisted that she took part in an identification procedure stating that she could get into trouble for wasting police time if she did not. Worried, the elderly lady took part in the procedure and picked out Oliver.

The prosecution had confirmed that they were still looking into enquiries regarding CCTV footage from the shop but this has never been disclosed.

On the day of trial the prosecution confirm that the shop did not have CCTV footage but they are going to proceed with the evidence from the elderly lady.

You are representing Oliver, what is the best course of action for you to take?

Make a submission of no case to answer at the beginning of the trial as the police have acted in bad faith in obtaining the identification evidence and the defendant would not receive a fair trial

Make an application of abuse of process as the police have acted in bad faith in obtaining the identification evidence and the defendant would not receive a fair trial.

Make an application under s.78 PACE as the police have acted in bad faith in obtaining the identification evidence and the defendant would not receive a fair trial.

Make a submission of no case to answer once the elderly lady has provided her evidence as the police acted in bad faith and her evidence is unreliable.

Answer 10

Make an application of abuse of process as the police have acted in bad faith in obtaining the identification evidence and the defendant would not receive a fair trial.

Correct – the defendant cannot receive a fair trial due to the process taken in obtaining the identification evidence. You should make an application to stay proceedings for an abuse of process due to the bad faith of the police and the unreliability of the elderly lady’s evidence.

Question 11

Your client is facing jury trial for burglary. The evidence against her is very weak and once the prosecution case has concluded it is apparent that only very weak evidence has been put forward that your client has committed the offence. You speak with your client before the start of the defence case and explain to her what is going to happen next.

Which of these statements best sets out your advice to your client as to whether the case might be discontinued?

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.

We can make a submission of no case to answer. If the judge finds there is no evidence that you committed the offence then they have the discretion to acquit. If we are successful the court will acquit.

We can make a submission of no case to answer. The jury will decide whether there is sufficient evidence in order to convict you. If we are successful the court will acquit.

We can make a submission of no case to answer. The judge will have to consider whether there is any evidence against you in order to properly convict. If we are successful the court will acquit.

We can make a submission of no case to answer one the court has heard the defence case. After the defence case has concluded we can make an application when the judge will have to decide whether there is sufficient evidence for the jury to convict. If we are successful the court will acquit.

Answer 11

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.

Question 12

Your client is accused of murder but has always said that he acted in self-defence. The issue of self-defence is raised at trial and at the conclusion of the defence case you speak to your client in private. He wants to know what the Judge will include in her summing up, as he is concerned that she will not mention self-defence.

Which of these statements best describes what the judge will include in summing up to the jury?

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.

The judge will direct the jury as to the law, but it is for the jury to interpret how the law should be applied. 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.

The judge will direct the jury regarding the law. In relation to self-defence she will explain that the burden is on the defence to prove beyond reasonable doubt that the defendant was acting in self-defence.

The judge will not make any directions regarding self-defence as it is for the jury to determine whether or not the defendant has demonstrated that they were acting in self-defence.

Answer 12

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.

Question 13

You represent the Defendant, Oliver, in a trial at the Crown Court. He is charged with handling stolen goods. The prosecution have adduced evidence that Oliver was the person arrested in possession of a bag containing 5 laptop computers. The prosecution have also adduced evidence that 5 laptop computers were stolen from the electrical store next door to his home address on the previous day. However, the prosecution have not adduced any evidence to confirm that the laptops found in Oliver’s possession are the same ones that were stolen from the store. When interviewed at the police station Oliver made no comment. In his proof of evidence he states that he bought the laptops from a friend in good faith and that he intended to sell them. He denies knowing or believing that the laptops were stolen.

The prosecution have now closed their case and you have to decide what to do next.

Which of the following is the best thing to do in the circumstances?

You should call the defendant to give evidence because failure to do so may result in an adverse inference being drawn which means it is more likely he will be convicted.

You should call the defendant to give evidence because it is for the defence to prove, on the balance of probabilities, that the goods were not stolen.

You should close the defence case without calling any evidence and rely upon the jury to acquit the defendant.

You should make a submission of no case to answer because there is no evidence of an essential element of the offence

Answer 13

You should make a submission of no case to answer because there is no evidence of an essential element of the offence

Correct. The prosecution must adduce evidence of each element of the offence. There must be evidence that the goods in his possession were stolen goods. Without any such evidence there is no case to answer and the Judge would be bound to agree with your submission.

Question 14

Sarah is on trial for murder and the closing speeches have just been heard. The case involved a number of evidential issues including confession evidence, hearsay and adverse inferences.

Which of the following best represents the approach that the Judge should take with summing up the case?

The judge should provide a verbal list of questions (route to verdict), written legal directions and other material that would help them with reaching a verdict.

The judge should provide a written list of questions (route to verdict), verbal legal directions and other information that would help them with reaching a verdict

The judge should provide a verbal list of questions (route to verdict), written legal directions and other information that would help them with reaching a verdict but it is not appropriate to provide anything in written form.

The Judge should provide a written list of questions (route to verdict), written legal directions and other material that would help them with reaching a verdict, including oral summing up.

Answer 14

The Judge should provide a written list of questions (route to verdict), written legal directions and other material that would help them with reaching a verdict, including oral summing up.

Correct – the judge should aim to make the jury’s job easy by giving clear instructions/guidance on the law and the best way to do this is provide written and verbal guidance.

Question 15

You represent Damon is standing trial of s.18 OAPA. It is alleged that he intentionally hit Tyrone with his car causing him to fracture his skull. Tyrone has no recollection of the incident and there were no other witnesses. Proceedings have been brought against Damon on the basis that there was CCTV footage which allegedly showed a vehicle similar to the one which Damon drives hitting Tyrone.

Damon denied the allegation during his police interview and provided the police with an alibi for the date in question.

The prosecution have failed to disclose the CCTV footage to the defence despite requests and an order made by the court.

On the day of trial the prosecution accept that the CCTV had been placed in the wrong evidence store and had been destroyed.

What is the correct application that you should make to the court?

You should make an application to exclude the prosecution evidence under s.78 PACE.

You should make an application to exclude the prosecution evidence under s.76 PACE.

You should make an application to stay the proceedings for an abuse of process.

You should make a submission of no case to answer.

Answer 15

You should make an application to stay the proceedings for an abuse of process.

Question 16

Question 1
A solicitor is representing a defendant at trial in the magistrates’ court on a charge of
assault occasioning actual bodily harm. When testifying, the complainant states that she
was punched by the defendant following an argument but she did not give any evidence
about the nature of her injuries and the prosecution did not adduce any medical evidence
to establish what injuries she suffered. No other prosecution evidence is adduced to
establish the complainant did suffer actual bodily harm although there is independent
evidence to help prove the defendant did punch the complainant.
Will the defence be likely to succeed in a submission of no case to answer at the end of
the prosecution case?
A Yes, because the evidence produced by the prosecution is so manifestly unreliable, that
no reasonable tribunal could safely convict on it.
B No, because the prosecution has produced direct and independent evidence that the
complainant was assaulted.
C No, because the complainant has testified to say that she was assaulted by the defendant.
D Yes, because the prosecution has failed to put forward evidence to prove an essential
element of the alleged offence.
E No, because there is circumstantial evidence to help prove that an assault took place.

Answer 16

Answer
Option D is the best answer. According to the test in R v Galbraith, a submission of no
case to answer should succeed where either the prosecution has failed to put forward
evidence to prove an essential element of the alleged offence, or the evidence produced
by the prosecution has been so discredited as a result of cross- examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it. We are told
that the prosecution has adduced evidence that there was an assault and there is nothing
to suggest that this evidence is manifestly unreliable, so option A is wrong. However, the
prosecution does not appear to have adduced any evidence that the complainant suffered
actual bodily harm as a result of this assault. So, option D is the correct explanation as to
why a submission ought to succeed.
Options B and C are therefore wrong because these explanations would only help prove
one element of the offence and not that the victim suffered actual bodily harm from
the assault. Option E is wrong because although circumstantial evidence is capable of
establishing a case to answer, we are not told about any such evidence in this case.

Question 17

Question 2
Three defendants have been charged with robbery. One defendant, a woman, admits that
she acted as a look- out and intends to plead guilty to being an accomplice to the robbery
when she appears in the Crown Court. This woman is also prepared to give evidence for
the prosecution implicating her co- accused, who are both men and whom she claims were
responsible for carrying out the robbery.
Which of the following best describes whether the woman will be a competent and
compellable witness for the prosecution assuming that she is sentenced before the date
of the trial of the two men?
A The woman is both competent and compellable because she has pleaded guilty and
so she has been severed from her co- accused.
B The woman is both competent and compellable because all persons are competent to
give evidence and competent persons are also compellable.
C The woman is competent to give evidence for the prosecution, but she cannot be
compelled to do so as she is also a co- accused.
D The woman is not competent to give evidence for the prosecution because she is still
an accomplice even if she has pleaded guilty.
E The woman is not competent to give evidence for the prosecution as she has a purpose
of her own to serve in testifying for the prosecution.

Answer 17

Answer
Option A is the best answer. Although the general rule is that all persons are competent
and compellable, this rule is subject to some important exceptions. One such exception
is in relation to an accused, who is neither a competent nor compellable witness for the
prosecution – see 53(4) YJ&CE Act 1999. However, this is subject to four exceptions, which
are recognised by s 53(5), including where an accused is severed from their co- accused
by pleading guilty. This means they can give evidence for the Crown against a co- accused
(in such circumstances it is usually considered desirable that the accused is sentenced first
before giving evidence). So, option A is correct and option D is wrong.
Option B is not the best answer because this only states the general rule and does not
adequately explain why the woman has become competent and compellable. Option C
is wrong because once the woman becomes competent, she also becomes compellable.
Option E is wrong as the woman is now competent. If she did have a purpose of her own to
serve in testifying against her co- accused, this would not stop her from being a competent
witness, but it may require the judge to give a warning to the jury to treat her evidence with
some caution (this is known as a corroboration warning but is beyond the SQE1 syllabus).

Question 18

Question 3
A solicitor represented a new client in the magistrates’ court at a trial for burglary. The
prosecution case was on the basis that the defendant was someone of good character. The
magistrates convicted the defendant. After the trial, the client instructs her solicitor that she
wants to appeal against her conviction. The client also confides in her solicitor by telling
him that the police got her name wrong when they charged her. Had she been prosecuted
under her correct name the prosecution would have discovered that she had a number of
previous convictions for dishonesty offences including three similar offences for burglary.
The client is adamant that she does not want the court or the prosecution to learn of her
correct name.
What should the solicitor now do in light of this information?
A The solicitor can continue to act for the client, but he must not make any reference to
the client’s name or her good character at the appeal hearing.
B The solicitor can continue to act for the client as he has an overriding duty to act in the
client’s best interests.
C The solicitor should withdraw from acting for the client, but he cannot tell the court or
the prosecution why.
D The solicitor should withdraw from acting for the client because he has breached his
overriding duty to the court.
E The solicitor should withdraw from acting for the client and must inform the court of the
client’s true name otherwise he will be complicit in misleading the court.

Answer 18

Answer
Option C is the best answer. The solicitor can no longer act for the client because to do so
would be knowingly misleading the court now that the solicitor is aware of the client’s true
name. However, the solicitor could not tell the court or the prosecution why, because to do so
would be breaching his duty of confidentiality to the client.
Option A is wrong because the solicitor would have to give the client’s name to lodge an
appeal and would also be misleading the court when appealing under a false name.
Especially so in a case like this where the prosecution would have been likely to make a bad
character application had they known of the client’s correct name. Option B is wrong, because
although it is correct to say that the solicitor has a duty to act in the client’s best interests, this
is not his overriding duty. Option D is wrong, because although his overriding duty is to the
court, the solicitor has not yet breached this as he was unaware of the client’s true name at
the time of the trial. However, the solicitor would now breach it if he continued to act for the
client knowing that the court and prosecution will be misled at the appeal. Option E is wrong,
because if the solicitor tells the court why he is withdrawing, he will be breaching his duty of
confidentiality to the client.

Question 19

Which one of the following correctly describes the burden and standard of proof in a robbery case?

The defendant bears the legal burden of disproving he committed the offence of robbery on the balance of probabilities

The defendant bears the legal burden of disproving he committed the offence of robbery to the standard of beyond reasonable doubt.

The prosecution bears the legal burden of proving that the defendant committed the offence of robbery to the standard of beyond reasonable doubt

The prosecution bears the legal burden of proving that the defendant committed the offence of robbery on the balance of probabilities

Answer 19

The prosecution bears the legal burden of proving that the defendant committed the offence of robbery to the standard of beyond reasonable doubt

Correct. This is the burden and standard of proof in criminal cases, see Woolmington v DPP [1935] AC 462.
The defendant generally does not bear the legal burden of proof in criminal cases. However, an example where the defendant has the burden to prove something would be the partial defence of diminished responsibility. The balance of probabilities is generally the standard of proof used in civil cases.

Question 20

Which one of the following directions to the jury correctly describes the standard of proof in an unlawful wounding case?

Unless at the end of the day you are satisfied the prosecution has proved their case, you must acquit the defendant

Unless you are satisfied at the end of the day that the prosecution has established its case against the defendant so that there is no doubt left in your minds about the truth of what the prosecution says, then the defendant must be acquitted.

If at the end of the day you are in reasonable doubt about whether the prosecution has proved its case, you must acquit the defendant

If at the end of the day you are reasonably sure the prosecution has proved its case, you must acquit the defendant

Answer 20

If at the end of the day you are in reasonable doubt about whether the prosecution has proved its case, you must acquit the defendant

Correct. This direction reflects the general rule that when the standard of proof in criminal cases is on the prosecution, it must prove its case beyond reasonable doubt. While the other options may have sounded plausible, they were incorrect as: - inaccurately described the standard of proof (as ‘reasonably sure’ or ‘proved the case’); and - put the standard of proof too high (as ‘no doubt’).

Question 21

Edie is charged with the murder of his wife. His defence to the charge is one of insanity. Which one of the following statements is correct regarding Edie’s insanity defence?

The prosecution bears the legal burden of disproving Edie’s insanity defence beyond reasonable doubt.

The prosecution bears the legal burden of disproving Edie’s insanity defence on the balance of probabilities.

Edie bears the legal burden of providing his insanity defence beyond reasonable doubt.

Edie bears the legal burden of proving his insanity defence on the balance of probabilities.

Answer 21

Edie bears the legal burden of proving his insanity defence on the balance of probabilities.

Correct. While it is usually the prosecution that bears the burden of proof beyond reasonable doubt, with the insanity defence, the legal burden is on the defendant on the balance of probabilities, see M’Naghten’s Case (1843) 10 Cl & F 200.

Question 22

Darren is charged with unlawful wounding contrary to s.20 Offences Against the Person Act 1861.

He is alleged to have stabbed the victim in the arm during an altercation outside a nightclub. Darren made no comment when interviewed by the police but in his defence statement he has asserted that he accepts causing the injury to the complainant but claims that he did so in order to protect himself because he believed the complainant was about to strike him with a hammer. His defence is therefore that he was acting in self defence.

What is the correct burden and standard of proof in this case?

The Defence must prove on the balance of probabilities that Darren was acting in self defence.

The Defence must prove beyond reasonable doubt that Darren was acting in self defence.

The Defence can invite the jury to acquit Darren on the basis of self defence whether or not there has been any evidence called to support the defence.

The Defence must adduce some evidence of self defence then it is for the Prosecution to prove beyond reasonable doubt that Darren used unlawful force which was not in self defence.

Answer 22

The Defence must adduce some evidence of self defence then it is for the Prosecution to prove beyond reasonable doubt that Darren used unlawful force which was not in self defence.

Correct. The defence bear an evidential burden only in relation to self defence. Once self defence is raised by some evidence then it is for the prosecution to disprove it to the usual high standard of beyond reasonable doubt.
The Defence do not bear the full legal burden to prove that Darren was acting in self defence either beyond reasonable doubt or on the balance of probabilities

Question 23

Sanjiv is being tried for drink driving, a strict liability offence, at a magistrates’ court. The prosecutor wants to adduce evidence that at the police station Sanjiv told the police that he knew that he was over the legal limit at the time of driving.

What is the best course of action for the District Judge to take?

Exclude evidence of Sanjiv’s comment on the basis that it would be unfair to admit the evidence.

Exclude evidence of Sanjiv’s comment on the basis that it amounts to a confession.

Refuse to allow the prosecutor to tender evidence of Sanjiv’s comment on the basis that it is irrelevant.

Allow the prosecutor to tender evidence of Sanjiv’s comment.

Answer 23

Refuse to allow the prosecutor to tender evidence of Sanjiv’s comment on the basis that it is irrelevant.

Correct. For any evidence to be admissible, it must be relevant. This is the first and most fundamental principle of evidence. Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue – ie does the evidence tend to prove or disprove a fact in issue.
A strict liability offence is one where no mens rea is needed for part of the actus reus of the offence. Sanjiv’s comment is irrelevant and therefore inadmissible, as it does not logically prove or disprove any of the ingredients of the strict liability offence of drink driving, so allowing the prosecutor to tender evidence of Sanjiv’s comment is not the best course for the District Judge to take.
Only if a piece of evidence was relevant to a fact in issue would the District Judge go on to consider whether there is an exclusionary rule (e.g. whether to exclude a piece of evidence on the basis it would be unfair to admit it or on the basis that a confession should be excluded for unreliability).

Question 24

John has been sent to the Crown Court for trial. The prosecution alleges that on 20 March John stole 6 bottles of vodka from a local corner shop. The prosecution also alleges that on 30 March the same year, John stole 3 bottles of gin from a different but still local supermarket.

Which of the following statements is the correct advice to the prosecution who have asked whether these two matters can be joined on the same indictment?

The two matters must not be joined on the same indictment, because it would not be in the interests of justice to do so.

The two matters may be joined in the same indictment.

The two matters may not be joined on the same indictment because the offences occurred on different dates.

The two matters must not be joined on the same indictment, because it would be prejudicial to John.

Answer 24

The two matters may be joined in the same indictment.

Correct. The counts can be joined in one indictment. It is a matter for the court’s discretion, taking into account: what the prosecutor proposes, any representations by the defence, the courts powers to order separate trials and the overriding objective. The court has the power to order separate trials where offences do not form a series of offences of the same or similar character. As John steals bottles of alcohol from two local vendors only ten days apart, these offences arguably form a series of offences of the same character. See CrimPR r.3.21(4).
The other options are incorrect because:
· while the court may order separate trials if ‘for any other reason it is desirable’, there is nothing in the scenario that points towards a desirable reason;
· offences occurring on different dates can be joined on the same indictment.

Question 25

Graham pleads not guilty to a charge of affray. On the last day of the trial before the Crown Court, just after the jury retire to consider the verdict, Graham tells you that he now wishes to change his plea from not guilty to guilty.

Can Graham change his plea?

Graham cannot now change his plea because the jury has retired to consider their verdict.

Graham can change his plea because the judge may allow a change of plea from not guilty to guilty at any time, even after the jury have returned their verdict.

Graham cannot change his plea because the judge has no power to allow a change of plea from not guilty to guilty once the trial has started.

Graham can change his plea because the judge may allow a change of plea from not guilty to guilty at any time, prior to the jury returning to court with a verdict.

Answer 25

Graham can change his plea because the judge may allow a change of plea from not guilty to guilty at any time, prior to the jury returning to court with a verdict.

Correct. The jury should be directed to return a formal verdict of guilty.
The other options are incorrect.
Changing plea after the jury have returned a verdict is not a viable option. If the jury returned a not guilty verdict, Graham would be unlikely to want to change his plea. If the jury returned a guilty verdict, a change of plea at this stage would make no difference to Graham’s sentencing.
Although it is a rare occurrence, Graham can still change his plea, even if the jury have been put in charge of the case.
Graham can change his plea once the trial has started. Strictly speaking, he needs the leave of the judge to have the indictment put again, but asking that it be put again is sufficient.

Question 26

Andrew is charged with sexual assault. The first count on the indictment relates to an incident where he allegedly sexually touched a woman who was travelling on the bus. The incident was witnessed by two other passengers, and caught on CCTV. The second incident relates to an incident where he allegedly sexually touched a woman in a queue of shoppers. This incident was witnessed by three customers, the cashier and was also caught on CCTV. Andrew’s defence to each count is accident. On the first day of his trial, all the witnesses, including the complainants, are present. However, one of the complainants (the one on the bus) is extremely reluctant to give evidence. Andrew’s defence counsel approaches prosecution counsel and offers to plead guilty to the first allegation if the second one is dropped. All parties, including the complainants, are happy to agree to this.

What is the best course for prosecution counsel to take?

Accept the guilty plea on count 1 and seek the judge’s permission to amend the indictment to delete count 2.

Accept the guilty plea on count 1 and drop count 2.

Accept the guilty plea to count 1 and offer no evidence on count 2.

Accept the guilty plea on count 1 and ask the judge to leave count 2 on file, not to be proceeded with without the leave of the court or the Court of Appeal.

Answer 26

Accept the guilty plea on count 1 and ask the judge to leave count 2 on file, not to be proceeded with without the leave of the court or the Court of Appeal.

Correct. This is the best course for prosecution counsel to take. This avoids a trial and avoids Andrew being acquitted on count 2, given the evidence against him for count 2 is strong.
The other options were not the best course of action for prosecution counsel to take because:
· accepting the guilty plea to count 1 and offering no evidence on count 2- this would only be appropriate if there was not enough evidence to prove count 2; and
· accepting the guilty plea on count 1 and dropping count 2- count 2 cannot simply be ‘dropped’; and
· accepting the guilty plea on count 1 and seek the judge’s permission to amend the indictment to delete count 2- while the prosecution can apply to amend the indictment to remove count 2 any time before a verdict, this is not the best course of action for prosecution counsel to take when there is strong evidence against Andrew on count 2.

Question 27

Alison is charged with common assault on her partner, Christine. Alison has pleaded not guilty to this charge. On the day of Alison’s trial, Christine fails to attend court to give evidence. The officer in the case phones her. Christine tells him that she cannot be bothered to attend court. The officer passes this information back to the prosecutor.

What is the best court of action for the prosecutor to take?

Ask the magistrates’ clerk for a warrant for Christine’s arrest, to secure her attendance at court.

Discontinue the case, on the basis that Christine does not want to come to court.

Ask the magistrates for a witness summons, to secure Christine’s attendance.

Ask the officer in the case to arrest Christine and bring her to court to be dealt with for contempt of court.

Answer 27

Ask the magistrates for a witness summons, to secure Christine’s attendance.

Correct. Christine is likely to be able to give material evidence, and it is likely to be in the interests of justice to issue a warrant to secure her attendance (see s.97 Magistrates’ Courts Act 1980).
The other options are incorrect because:
· A magistrates’ court clerk cannot issue a warrant of arrest to secure a witness’s attendance. Further, a warrant of arrest could only be issued by a magistrate after hearing evidence on oath regarding the effectiveness of issuing a witness summons (see s.97 Magistrates’ Courts Act 1980).
· Whilst there may be cases where, in a domestic violence case, a complaint’s decision not to come to court, on the basis that they do not want to, might result in the case being discontinued, this does not appear to be such a case- Christine simply cannot be bothered to attend court.
· Whilst there is a power to deal with absent witnesses for contempt of court, this power can only be used where the witness has, without just excuse, disobeyed a witness summons (see s.3 Criminal Procedure (Attendance of Witnesses) Act 1965).

Question 28

Terry is accused of kidnapping Hardeep, who was 17 at the date of the alleged kidnapping. The prosecution wish to call Lara, who is 10, as a witness to the alleged kidnapping.

Is Lara competent to give evidence?

Lara will not be competent to give evidence if it appears to the court that she is not able to understand questions put to her and to give answers that can be understood.

Lara will only be competent to give evidence if she has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.

Lara will not be competent to give evidence because she is only 10 years old.

Lara will only be competent to give evidence if it appears to the court that she understands it is her duty to speak the truth and that she has sufficient understanding to justify her evidence being heard.

Answer 28

Lara will not be competent to give evidence if it appears to the court that she is not able to understand questions put to her and to give answers that can be understood.

Correct. Section 53(1) Youth Justice and Criminal Evidence Act 1999 is subject to these qualifications which are contained in s.53(3).
The other options are incorrect because:
- Lara being 10 years old- Age is not the determining factor of whether a child is competent. Section 53(1) Youth Justice and Criminal Evidence Act 1999 creates a presumption of competency, regardless of age.
- Lara will only be competent to give evidence if she has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath- this does not reflect the wording of s.53(3) Youth Justice and Criminal Evidence Act 1999 which explains when a person is not competent to give evidence in criminal proceedings.
- Lara will only be competent to give evidence if it appears to the court that she understands it is her duty to speak the truth and that she has sufficient understanding to justify her evidence being heard- again this does not reflect the wording of s.53(3) Youth Justice and Criminal Evidence Act 1999.

Question 29

Which of the following correctly explains the weight that should be given to expert evidence by the jury?

The jury is obliged to accept expert evidence given on an ultimate issue

The jury is not obliged to accept expert evidence, even when there are no other circumstances to consider and unequivocal, uncontradicted medical evidence favourable to an accused is given in a diminished responsibility case

The jury is obliged to accept expert evidence, when it is not contradicted, even if it leaves questions unanswered

The jury is not obliged to accept expert evidence, even if it is not contradicted, if there is other evidence that tends to an alternative conclusion

Answer 29

The jury is not obliged to accept expert evidence, even if it is not contradicted, if there is other evidence that tends to an alternative conclusion

Correct. This answer adequately reflects the weight to be given to expert evidence by the jury.
The other answers are incorrect.
Option: The jury is obliged to accept expert evidence, when it is not contradicted, even if it leaves questions unanswered. Feedback: This would be a misdirection by the judge if stated to the jury. The jury can reject the expert evidence if it leaves questions unanswered. The jury is not obliged to accept expert evidence uncritically, even when no expert is called by the other side.
Option: The jury is obliged to accept expert evidence given on an ultimate issue. Feedback: While the common law principle is that an expert should not give an opinion on the ultimate issue, if expert evidence is given on an ultimate issue, it should be made clear to jury that they are not obliged to accept the expert evidence.
Option: The jury is not obliged to accept expert evidence, even when there are no other circumstances to consider and unequivocal, uncontradicted medical evidence favourable to an accused is given in a diminished responsibility case. Feedback: On the issue of diminished responsibility, if there are no other circumstances to consider and unequivocal, uncontradicted medical evidence favourable to the accused is given, the jury should be directed to accept it.

Question 30

Ron has been charged with inflicting grievous bodily harm on his wife, Rosie. Ron and Rosie have a daughter, Sarah, aged 13. The prosecution want to call Rosie and Sarah as witnesses.

Which of the following correctly describes the competence and compellability of Rosie and Sarah?

Rosie and Sarah are competent and compellable.

Rosie is competent but not compellable. Sarah is competent and compellable if she can understand questions put to her and give answers which can be understood.

Rosie is competent and compellable. Sarah is not competent as she is under 14.

Rosie is competent and compellable. Sarah is competent and compellable if she has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.

Answer 30

Rosie and Sarah are competent and compellable.

Correct. The other answers were incorrect in part as did not correctly describe the competence and compellability of Rosie and Sarah.
Competence
Rosie, as Ron’s spouse 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.
Although Sarah is a child under the age of 14, age is not the determining factor of whether she is competent; the only test is whether she can: (i) understand the questions; and (ii) can give comprehensible answers. See s.53(1) and s.53(3) Youth Justice and Criminal Evidence Act 1999.
Compellability
Rosie, as Ron’s spouse can, in this instance, be compelled to give evidence for the prosecution as the offence charged against Ron is injuring Rosie i.e. domestic violence (s.80(2A) and s.80(3)(a) PACE 1984). In relation to Sarah, so long as she is competent, she is compellable.

Question 31

Sarah, aged 34, is a complaint in a rape case. She is extremely frightened about giving evidence in court.

What is the most appropriate application for prosecution counsel to make?

Sarah is automatically eligible for special measures. Sarah’s evidence should be given in the form of a written statement.

Sarah is automatically eligible for special measures. Sarah should be allowed to give evidence by live link, accompanied by a supporter.

That Sarah should be eligible for special measures, as she is frightened. Sarah should be granted an intermediary to assist her when giving evidence.

That Sarah should be eligible for special measures, as she is frightened. Sarah should be allowed to give evidence from behind a screen.

Answer 31

Sarah is automatically eligible for special measures. Sarah should be allowed to give evidence by live link, accompanied by a supporter.

Correct, this is the most appropriate application for prosecution counsel to make. See s.24 Youth Justice and Criminal Evidence Act 1999.

Question 32

Peregrine is on trial for theft. The only evidence against him is from a witness (who does not know Peregrine) that claims she saw him take a purse from the victim’s handbag. During cross-examination, the witness concedes that the incident took place after dark in a busy street about 30 metres from where she was standing. She also concedes that her view was partially obstructed by passers-by and that she cannot now be sure that it was Peregrine she saw taking the purse.

What is the most appropriate course for the Judge to take?

Allow the case to go to the jury, but not give a Turnbull warning.

Allow the case to go to the jury but give a Turnbull warning.

Withdraw the case from the jury and direct an acquittal.

Exclude evidence of the identification.

Answer 32

Withdraw the case from the jury and direct an acquittal.

Correct. Although the judge could allow the case to go to the jury, the witness has conceded that she cannot be sure of the identification, and as such a jury properly directed could not convict. The most appropriate course of action is therefore to withdraw the case from the jury under the R v Galbraith principles and direct an acquittal.
The other options were not the most appropriate course for the judge to take. Allowing the case to go before the jury is appropriate when the visual identification evidence given by the witness at trial is either strong enough to be left to the jury or is weak but supported by some other evidence which is not the case here. Section 82(3) PACE 1984 preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value. However, it is not the most appropriate course of action for the Judge to exclude the evidence and direct the jury not to take account of the witness’s identification evidence, especially when there is no other evidence supporting the case against Peregrine.

Question 33

Kyle is charged with robbery. His defence is alibi. An eyewitness, Helen, saw the robbery very briefly. She gives evidence to the effect that she recognised the robber to be Kyle, a friend of her youngest son. There is little other evidence linking Kyle to the robbery.

Should the Judge give a Turnbull warning in this case?

The Judge should not give a Turnbull warning in this case since the defence is alibi.

The Judge should give a Turnbull warning in this case.

The Judge should not give a Turnbull warning in this case as it is based upon recognition evidence.

The Judge should only give a Turnbull warning in this case if of the view that Helen’s identification evidence is of particularly poor quality.

Answer 33

The Judge should give a Turnbull warning in this case.

Correct. A Turnbull warning is mandatory as the identification evidence is disputed and the case depends substantially on the correctness of Helen’s identification.
The other options are incorrect.
A Turnbull warning should be given in cases of alleged recognition; many times, someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong.
A Turnbull warning is appropriate if Helen’s identification evidence is strong enough to be left to the jury or is weak but supported by some other evidence. The jury must be given a Turnbull warning advising them to be cautious before convicting on it.
By putting forward a defence of alibi, Kyle is alleging the identification of Helen to be mistaken, so a Turnbull warning is appropriate.

Question 34

Holly is on trial for assault occasioning actual bodily harm against her boyfriend after an altercation at a nightclub. Her boyfriend has refused to co-operate with police and the only witness is Gregory, who contends that Holly was at the nightclub at the time of the assault and that he saw her hit a male, who it is now accepted is her boyfriend. Gregory points Holly out to a police officer in the street the next morning. Holly’s defence is that she was at home all evening with her boyfriend and their dog.

Just before the trial is about to begin, the officer in the case has admitted that Gregory was not asked to take part in a formal identification procedure as required by Code D of PACE.

What is the best approach for defence counsel in this situation?

To make a point about Gregory not taking part in a formal identification procedure in defence counsel’s closing speech to the jury, having refrained from cross examining Gregory on this point

To apply to the judge to exclude Gregory’s identification under s78 PACE 1984

To cross examine Gregory on the fact that he had not taken part in a formal identification procedure

To make a submission of no case to answer on the basis that the jury cannot safely convict on Gregory’s identification as it has not been properly tested with a formal identification procedure

Answer 34

To apply to the judge to exclude Gregory’s identification under s78 PACE 1984

Correct. The identification evidence will not be automatically excluded, as breaches of Code D do not inevitably lead to the exclusion of the evidence. However, this is the best course of action, to try and prevent the evidence going before the jury at all by making an application to exclude it under s78 PACE.
The other options are incorrect or not the best answer.
Although defence counsel could cross examine Gregory on the lack of formal identification, it is not the best answer, as the jury will have heard Gregory’s identification evidence.
If Gregory’s identification evidence is not excluded, the judge may give a direction that Holly lost the benefit of this safeguard and the jury should take account of that fact in assessing the case, giving it the weight they think fit.
You will discover when you consider jury trial procedure that defence counsel cannot make a point about this in a closing speech if it has not been the subject of evidence.

Question 35

Iona is charged with robbery. The robbery was witnessed by June and Keith, who witnessed the robbery and saw the robbers drive off in a car. However, when June gives evidence, she cannot recall the details of the registration mark of the car. She wishes to refresh her memory of the registration mark from a statement she gave to PC Willams at the time of the incident. PC Williams took down the statement in her notebook, although she did not read the statement back to June at the time, nor did June check the notebook herself. Keith made a note of the registration mark on a piece of paper, which he has with him at court.

What is the correct course of action for prosecution counsel to take regarding June’s wish to refresh her memory of the registration mark?

Ask the judge for leave for June to be able to refresh her memory from the notebook.

Accept that June will not be able to give evidence of the registration mark of the car, and obtain the evidence from Keith when he gives evidence.

Ask June to refresh her memory from the notebook.

Ask the judge for an adjournment, for June to provide an additional witness statement after being shown a copy of PC Williams’s notebook.

Answer 35

Accept that June will not be able to give evidence of the registration mark of the car, and obtain the evidence from Keith when he gives evidence.

Correct. As Keith made a note of the registration mark, he will be able to exhibit the note on which the registration mark is set out, or refresh his memory from it, if needs be.
The other incorrect options were asking:
· June to refresh her memory from the notebook;
· the judge for an adjournment, for June to provide an additional witness statement after being shown a copy of PC Williams’s notebook; and
· the judge for leave for June to be able to refresh her memory from the notebook.
All of these options were incorrect as June has not made the statement herself nor has she verified the statement as being correct. Even to providing an additional witness statement would mean that June would be relying on information that she did not verify at the time as being accurate.
Section s.139 Criminal Justice Act 2003 is the relevant statutory provision on memory refreshing.

Question 36

Elliott is 19 years of age. It is alleged that he punched his best friend, Adam, following a disagreement in the street. Elliott believed that Adam had been sending romantic text messages to his girlfriend and he went to Adam’s house to confront him. Upon hearing a heated altercation, Adam’s neighbour came out of their house and told the two young men that she had called the police. Elliott fled the scene. When he got home, he explained what had happened to his mother. She asked him, ‘Elliott, tell me the truth, did you punch Adam?’. Elliott answered, ‘maybe’. When the police arrive to arrest Elliott, his mother repeats what her son had said to her. The investigating officer believes that this is a confession.

Does Elliott’s answer amount to a confession?

Elliott’s answer does amount to a confession because it is an unequivocal acceptance of guilt.

Elliott’s answer does not amount to a confession because it has not been made to a person in authority.

Elliott’s answer does amount to a confession because it is partly adverse to him.

Elliott’s answer does not amount to a confession because it is equivocal.

Answer 36

Elliott’s answer does amount to a confession because it is partly adverse to him.

Correct. This answer does amount to a confession because it is partly adverse to him. Section 82 PACE defines a confession as including “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”.
The other answers were incorrect because:
· Elliott’s answer does not amount to a confession because it is equivocal- a confession can be a statement partly adverse to the person who made it (i.e. an equivocal statement).
· Elliott’s answer does not amount to a confession because it has not been made to a person in authority- a confession does not have to be made to a person in authority.
· Elliott’s answer does amount to a confession because it is an unequivocal acceptance of guilt- the word ‘maybe’ is not an unequivocal statement acceptance of guilt as it is ambiguous, evasive and open to two possible interpretations, that Elliott did or did not punch Adam.

Question 37

You represent Kate at trial in the Crown Court. Kate is charged with possessing a firearm with intent to cause fear of violence, the allegation being that she ran into the road screaming at a crowd of local youths and brandishing her legally held shotgun at them. None of the youths has attended the trial and the prosecution case now rests upon the full confession that Kate made during her police interview.

Kate declined legal advice at the police station, and planned to give a no comment interview. Just prior to interview, she was told by the police that they had CCTV evidence that showed her brandishing a gun at the youths. As a result of what she had been told, she confessed during police interview. It transpires that there is no CCTV evidence, and the police lied to Kate in order to extract a confession from her.

What is the most appropriate advice for you to give to Kate?

The confession was obtained by oppression, so will be excluded under s 76(2)(a) PACE 1984

The confession is unreliable as a result of the lie told by the police, so will be excluded under s 76(2)(b) PACE 1984

The confession will be excluded under s 78 PACE 1984, as s 78 is a mechanism used by the courts to discipline the police

The confession may be excluded by the judge under s 78 PACE 1984 as the presence of bad faith makes it more likely that the confession will be excluded and there is a strong argument it would be unfair for the prosecution to rely on it in these circumstances

Answer 37

The confession may be excluded by the judge under s 78 PACE 1984 as the presence of bad faith makes it more likely that the confession will be excluded and there is a strong argument it would be unfair for the prosecution to rely on it in these circumstances

Correct. This is the most appropriate advice. See Mason [1988]. Kate had planned a no comment interview, and only confessed as a result of the lie. There is a strong argument here that it would have an adverse effect on the fairness of the proceedings for the prosecution to rely on the confession in these circumstances.
The other options were incorrect or not the best advice because:
- It is not the function of the court to use s 78 PACE 1984 to discipline the police;
- Despite the presence of bad faith, the conduct in question falls short of oppression;
- Something was said or done to Kate that resulted in the confession, but it is not necessarily the case that it will result in any such confession being unreliable. It would be incautious to say ‘it will be excluded’.

Question 38

Megan is charged with arson. She admitted in her police recorded interview under caution that she had set fire to her council flat because she wanted to be rehoused. Her confession is the main evidence against her, and the prosecution propose to rely on it. At trial in the Crown Court no application is made to exclude the confession, albeit the defence statement deals with this issue by asserting that even though she confessed to the offence she only did so out of confusion and distress. Before the trial starts, the judge notices that Megan does appear to be extremely confused, distressed and vulnerable. The judge also notes that, despite Megan’s obvious vulnerability, no appropriate adult was with her during the interview. In these circumstances, the judge is concerned about the reliability of the confession and raises this with both defence and prosecution counsel. Notwithstanding the judge’s intervention, defence counsel does not apply to exclude the confession.

What should the Judge do next?

The judge should require the prosecution to prove that the confession was not obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render any confession unreliable.

The judge should ask the prosecution to review the evidence as a whole to ensure it is satisfied that the confession is reliable.

The judge should ask the prosecution and defence to review the entirety of the evidence in the case to ensure that both are satisfied that the confession is reliable before the trial commences.

The judge should require the defence to apply to exclude the confession on the basis it was obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render any confession unreliable.

Answer 38

The judge should require the prosecution to prove that the confession was not obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render any confession unreliable.

Correct. By section 76(3) PACE where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in S.76(2).
The other answers were incorrect because:
· The Judge has no power to force the defence to apply to exclude the confession. Here the defence have declined to make an application and the judge has observed the defendant’s obvious vulnerability, so it is appropriate for the judge to intervene at this stage.
· It is not simply a matter of leaving it to the prosecution or the parties to satisfy themselves that the confession is reliable. The state of the case as a whole is irrelevant. It is the evidence surrounding the obtaining of the confession that must be considered in isolation.

Question 39

Which of the following best describes the evidence that s.76 Police and Criminal Evidence Act 1984 may be used to exclude?

Evidence the defence intend to rely on

Evidence that the prosecution intend to rely on

Evidence of confessions the prosecution intend to rely on

Evidence that has already been adduced

Answer 39

Evidence of confessions the prosecution intend to rely on

Correct. A confession that the prosecution intend to rely on may be excluded under s.76(2)(a) for oppression or s.76(2)(b) for unreliability. Section 78 is also commonly utilised alongside s.76 PACE 1984 to seek to exclude evidence of confessions which the prosecution seek to rely upon.
The other options were incorrect because they were not the best answer:
· Section 76 does not relate to evidence the defence intend to rely on. However, it can apply to evidence a co-defendant intends to rely upon under s.76A(2)(a) and (b).
· Section 78 PACE 1984 may be used to exclude evidence (including confessions) which the prosecution intend to rely on in a wide variety of cases where the defence consider it would result in unfairness.
· Section 82(3) PACEpreserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value, this includes the discretion to exclude evidence that has already been adduced if it is necessary in order to secure a fair trial for the accused.

Question 40

Divesh is charged with theft. He has number of convictions, including several for theft. Prior to arresting him, police go to his home address and ask him about the alleged offence. The conversation takes place without the police first cautioning Divesh and informing him of his right to consult legal advice. In the ensuing conversation, Divesh confesses to the offence. At trial, prosecution counsel wishes to tender evidence of the confession. Counsel for Divesh argues that the evidence is inadmissible under s.78 PACE 1984.

What should the judge do?

Rule that whilst there have been no breaches of PACE Code C, evidence of the confession can be excluded.

Rule that there have been no breaches of PACE Code C, meaning that evidence of the confession can be admitted.

Rule that whilst there have been breaches of PACE Code C, evidence of the confession is admissible as Divesh was clearly aware of his rights as a result of his previous dealings with the police.

Rule that there have been breaches of PACE Code C, meaning that evidence of the confession must be excluded.

Answer 40

Rule that whilst there have been breaches of PACE Code C, evidence of the confession is admissible as Divesh was clearly aware of his rights as a result of his previous dealings with the police.

Correct. Rule that whilst there have been breaches of PACE Code C, evidence of the confession is admissible as Divesh was clearly aware of his rights as a result of his previous dealings with the police. See the case of Dunford (1990) 91 Cr App R 150 for example.
The other answers were incorrect because:
· There have been numerous breaches of PACE Code C. An interview should generally take place at the police station, not Divesh’s home. Interviews must be carried out under caution, therefore Divesh should have beencautioned before the police asked any questions about his suspected involvement in the theft. The right to consult with a legal representative is a fundamental right and Divesh must be told of this immediately before the commencement of an interview.
· Simply because the confession has been irregularly obtained in breach of PACE Code C, it does not per se render it inadmissible. 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.

Question 41

Phillipa (aged 21) is charged with common assault on her partner John. Her trial is due to take place at a magistrates’ court. On the day of trial, John and the other prosecution witnesses due to give evidence, are all at court and the prosecution are trial ready but Phillipa is not there. She is legally represented and on the last occasion she was informed of the trial date and told that the trial could go ahead in the event of her absence. She has told her lawyer that she cannot attend court because she is at the hairdressers.

What is the most likely approach for the court to take?

The court will not enquire as to the reason for Phillipa’s failure to appear and will proceed to trial as if she was present.

The court will adjourn the trial and give reasons for not trying Phillipa in her absence.

The court will proceed to trial but given Phillipa’s absence, the trial can be shortened, for example by reading out the prosecution statements.

The court will enquire as to the reason for Philipa’s failure to appear but given the explanation for her absence, proceed to trial as if she was present.

Answer 41

The court will enquire as to the reason for Philipa’s failure to appear but given the explanation for her absence, proceed to trial as if she was present.

Correct. A court must try an absent defendant who is over 18 unless it appears contrary to the interests of justice to do so, pursuant to section 11(1) Magistrates Courts Act 1980. There does not appear to be a good enough reason for her absence. Crim PR r.24.12(3) states that the court must proceed as if the defendant was present, had pleaded not guilty and the case should be proved in the usual way. Although the court is not obliged to enquire as to the reason for the defendant’s absence, it usually will.
The other options were not the most likely approach for the court to take.
It is possible for the court to adjourn the trial if it appears contrary to the interests of justice to try an absent defendant but being at the hairdressers is not a good enough reason for her absence. The court must give reasons if it does not try Phillipa in her absence.
The case will need to be proved in the usual way and the prosecution cannot simply read out the statements because the defendant is not there. The trial should proceed as if the defendant was present and had pleaded not guilty.
Section 11(6) Magistrates Courts Act 1980 provides that the court need not enquire into the reasons for the accused’s failure to appear, but judges or magistrates usually do ask why a defendant is absent before proceeding to trial, in fairness to the defence. In addition, section 11(2A) provides that the court shall not proceed in the defendants absence if it considers that there is an acceptable reason for the defendant’s failure to appear. Courts usually enquire in case there is an acceptable reason for absence, for example a defendant being unexpectedly hospitalised

Question 42

Aubrey is charged with theft from a shop that is located inside a busy shopping centre. It is alleged that he stole a brand-new phone from the shop’s display. The case is being tried at a magistrates’ court and depends on the evidence of a store security guard who was on duty when the theft took place. He claims that he saw someone forcibly take the phone from the shop’s alarmed shelving. He later identified Aubrey, at a video identification procedure organised by the police, as being the person who stole the phone. Aubrey’s defence is that although he was in the vicinity of the store at the time of the theft, this is a case of mistaken identification. At trial, under cross-examination the security guard accepts that his description of the thief was a very general one and he is probably mistaken about the identity of the person who stole the phone.

What is the best course of action for Aubrey’s advocate to take?

The advocate should apply to have evidence of the identification excluded under s.76 PACE 1984.

The advocate should make a submission that there is no case for Aubrey to answer.

The advocate should apply to stay the prosecution as an abuse of process of the court.

The advocate should apply to have evidence of the identification excluded under s.78 PACE 1984.

Answer 42

The advocate should make a submission that there is no case for Aubrey to answer.

Correct. This case depends wholly on the correctness of the visual identification evidence of the store security guard and Aubrey’s defence is mistaken identity. The security guard now accepts that he is probably mistaken about the identity of the thief. As there is no other evidence supporting the visual identification of Aubrey, the advocate should therefore apply to have the defendant acquitted on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict.
This answer reflects the summary trial procedure, on submission of no case to answer (CrimPR r24.3(3)(d)) and the principles of the case of Galbraith [1981] 2 All ER 1060. In addition, it also takes into account the Turnbull Guidelines on visual identification evidence.
The other options were incorrect or not the best course of action for Aubrey’s advocate to take.
Section 76 Police and Criminal Evidence Act 1984 only allows for the exclusion of evidence of confessions. This is not the appropriate application on this fact pattern.
Although section 78 Police and Criminal Evidence Act 1984 applications are concerned with the fairness of evidence on which the prosecution proposes to rely on, submission of no case to answer was a better course of action to take, especially given the evidence from the store security guard had already been heard.
An abuse of process application is not the appropriate application because an abuse of process application relates to whether: * the defendant can have a fair trial; or * 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. If you review your materials on abuse of process applications, in particular the examples of when the defence might apply to have the proceedings stayed as an abuse of process, this case is not comparable (e.g. defendant has been tricked into committing an offence or the police have deliberately destroyed evidence that would assist the defence).

Question 43

You are defending Yvonne who is charged with theft. It is alleged she stole two bottles of wine from a supermarket. There is identification evidence from a member of the public in the store, who will say he saw Yvonne put the bottles of wine in her shopping trolley in the alcohol aisle. Yvonne denied the allegations when they were put to her in interview and stated the member of the public was a neighbour she had fallen out with. She claims that the disgruntled neighbour put the bottles in her trolley. Yvonne argues that supermarket CCTV footage will confirm this. By the time the police contact the supermarket about the CCTV footage, some 16 weeks later, it has been deleted.

What is the best course for you to take, as Yvonne’s advocate?

Apply to stay the prosecution as an abuse of process of the court.

Apply to have evidence of the neighbour excluded under s.78 Police and Criminal Evidence Act 1984.

Apply to have evidence of the neighbour excluded under the common law.

Apply to have evidence the neighbour excluded under s.76 Police and Criminal Evidence Act 1984.

Answer 43

Apply to stay the prosecution as an abuse of process of the court.

Correct. This is the best course for you to take in dealing with the loss of the CCTV footage. It is submitted that the police failed in their duty to investigate the defence and obtain the CCTV footage. Arguably, she cannot now receive a fair trial.
The other options were either the incorrect or not the best course of action for you to take as Yvonne’s advocate.
Section 76 Police and Criminal Evidence Act 1984 only allows for the exclusion of evidence of confessions. This is not the appropriate application on this fact pattern.
Although a s.78 Police and Criminal Evidence Act 1984 or common law application to exclude the evidence of the neighbour could be legitimate courses of action to take, it is submitted that an application to stay the prosecution is the better course to take as this could result in the proceedings coming to an end, rather than the evidence being excluded and the trial continuing.