Week 14 materials Flashcards Preview

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Flashcards in Week 14 materials Deck (52):
1

a) Classification Rape and GBH


Rape: indictable only B3.7
 
s.18 GBH: indictable only B2.65
 
You need to memorise these classifications (section 1 syllabus)

2

Q.1(b) Types of sentence for dangerous offenders

Discretionary life sentence
Extended sentence
Life sentence for second listed offence
Custodial sentence for ‘certain offenders of particular concern’
E4.1

3

Q.1.(c) Types of offence that fall within dangerous offender provisions

Specified sexual or violent offences listed in Sch. 15
E4.3

4

Q.1(d) What is a ‘serious offence’?

A ‘serious offence’ is defined as a specified sexual or violent offence which is punishable in the case of a person aged 18 or over by:
imprisonment for life, or
imprisonment for a determinate period of 10 years or more.
E4.3

5

Q.1(e) Assessment of dangerousness


Definition:  
Whether the offender poses a ‘significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences’.
E4.19

6

Assessment of dangerousness cont.

In deciding whether the offender is dangerous, the court: 
Must take into account all such information as is available to it about the nature and circumstances of the offence,
May take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
May take into account any information which is before it about any pattern of behaviour of which the offence forms part, and
May take into account any information about the offender which is before it
E4.19

7

Q.2 PankajQ.2(a) Classification

Possession Heroin (Class A): EWO
B19.129/p.1017

ABH: EWO
B2.28
 
You need to memorise these two classifications

8

Q.2(b) Pros application re confiscation

Prosecutor may apply to postpone the confiscation proceedings
For up to 2 years from date of conviction
Can apply to postpone for longer in ‘exceptional circumstances’.
A general lack of information would not merit a postponement for exceptional circumstances.
E19.8

9

Q.2(c) Will postponement of confiscation affect sentence?

Court can still proceed to sentence and this can include an order for payment of compensation, but no other financial penalties can be imposed where confiscation is postponed
E19.8

10

Q.2(d) Will financial means of offender affect likelihood of compensation?

Undesirable for compensation order to be hanging over his head after release
Order may be counterproductive and force him back into crime
E16.15

11

Q.1(g) Ancillary orders

• Costs: Self-study session 2
• Compensation:
• Instead of or in addition to dealing with him in any other way.
• For personal injury, loss or damage (or funeral expenses/bereavement in
case of death)
E16.1, E16.15
• Will also be subject to notification requirements:
• MUST within 3 days of conviction notify police of:
• DOB
• NI number
• Name/aliases
• Home address/any other address at which regularly stays.
• Subsequent changes must be notified to police
E23.1

12

Lorna Mills appears at Whiteacre Magistrates' Court and pleads guilty to an offence of Criminal
Damage at her local newsagent. She became impatient whilst waiting in a queue, knocked
over a display of sweets and stamped on them.
She is in breach of a sentence of 10 weeks' imprisonment, suspended for two years, imposed
by another magistrates' court.
The suspended sentence was imposed in June 2014 for an offence of Criminal Damage at an
off-licence. She was asked to leave the premises when she became abusive and smashed
ten bottles of wine.
When the original sentence was passed the magistrates imposed a six-month supervision
period during which time Lorna was excluded from the off-licence where she caused the
damage.
What action can be taken in respect of the suspended sentence? (think about the general
principles and then apply them to the facts)

Action that can be taken:
If a D fails without reasonable excuse to comply with community requirements or is convicted
of an offence committed during operational period, the court has effectively 5 options:
(a) Order the suspended sentence to take effect with its original term (the custodial
period) unaltered – the activated term would normally be ordered to be served
consecutively with the term imposed for the later (‘breach’) offence;
(b) Order the suspended sentence to take effect with a shorter custodial period;
(c) Impose a fine up to £2,500.
(d) Where the suspended sentence imposed community requirements, amend the
suspended sentence order by imposing more onerous community requirements,
or extending the supervision period and/or the operation period.
(e) Where the suspended sentence does not impose community requirements, court
may still extend operational period.
The court must make an order under option (a) or (b) above, unless it would be ‘unjust’ to do
so in view of all the circumstances.
E6.12
Applying to the facts:
a) Lorna could be sentenced to 10 weeks’ imprisonment. The magistrates can
order this sentence to be served consecutively to any term of imprisonment
imposed for the later offence.
b) Lorna could be sentenced to a term of imprisonment of less than 10 week’s
imprisonment.
c) Lorna could be fined.
d) More onerous community requirements could be imposed on Lorna i.e.
requirements in addition to her exclusion from the off-licence. The supervision
period could be extended, but to no more than two years. The operational
period cannot be extended as it is already at the maximum of two years.
Additional points:
The length of the custodial term must be between 14 days and six months in the Mags and
between 14 days and two years in the CC. E6.1
The supervision period and operational period should be not less than 6 months or more than
2 years: not on syllabus as in E6.2.

13

MCQ 1
On 1.11.15 Reggie, DOB 7.1.96, pleaded guilty in the Crown Court to supplying Ecstasy in
a nightclub on 30.9.15. He has convictions in 2012 for being concerned in the supply of
crack cocaine and in 2013 for possession of heroin with intent to supply.
Ecstasy, cocaine and heroin are all Class A drugs.

Which of the following statements is true:-
[A] Because Reggie is under 21 the court must impose a sentence most likely, in its view, to lead
to his successful rehabilitation.
[B] Because this is a third conviction in respect of a Class A drug no credit can be given for
Reggie’s guilty plea.
[C] The court must sentence to a minimum of 7 years’ detention in a Young Offenders Institute
(subject to any discount for his guilty plea) unless it would be unjust to do so.
[D] The court must sentence to a minimum of 3 years’ detention in a Young Offenders Institute
(subject to any discount for his guilty plea) unless it would be unjust to do so.

-Mandatory and Minimum sentences for Class A drug offences and domestic burglary: E5.1; E5.3-5.4; E5.8
Syllabus Section 24

The answer is [C]
 s.110 PCC(S)A 2000 imposes a mandatory minimum sentence for a third Class A drug trafficking offence by someone aged 18 or over unless unjust to do so having regard to the circumstances of the offence or offender.
 Note similar minimum sentences for 3 strikes burglars (at least 3 years)
 Guilty Plea:
 May reduce below 7 years, but
 Not below 80% of specified sentence: s.152(3) PCC(S)A).
BCP E5.1: E5.3
Other points to note:
a) That liability to the minimum sentence arises once an offender is 18 in respect of drug trafficking offences and burglary.
b) The minimum sentences differ. They are 7 years for third drug trafficking offence, 3 years for third domestic burglary.
c) Those under 21 will be sentenced to detention in a YOI rather than to imprisonment.
d) A discount of up to 20% is allowed for guilty pleas to drug trafficking offences, burglaries .

14

MCQ 2
Which of the following correctly states the procedure to be followed when seeking an
indication of sentence before plea:-
(i) Although an indication of sentence is binding on the judge who gives it, it is not
binding on any other judge who becomes responsible for the case.
(ii) Defence counsel must have his client’s written consent to do so before seeking an
indication of sentence prior to plea
(iii) The Judge is not bound to give a prior indication of sentence even though a
defendant requests it
(iv) There should be a written basis of plea agreed between the prosecution and the
defence
[A] (i) only
[B] (ii) and (iii) only
[C] (ii) and (iv) only
[D] (ii), (iii) and (iv) only

Indications of sentence: D12.60-65
Syllabus Section 22
Answer is [D]
Because:-
 Incorrect: it binds the judge who gives it and any other judge who becomes responsible for the case D12.62
 Correct: D12.63
 Correct: D12.62
 Correct: D12.63

15

Anna and Caitlyn are jointly charged with committing grievous bodily harm with intent against Ruaraidh. The alleged facts are that they launched an unprovoked violent assault on Ruaraidh outside a public house which involved the use of an unidentified weapon, and as a result of the assault Ruaraidh sustained serious permanent brain damage and is no longer able to speak or comprehend the speech of others. Soon after the alleged assault, an ambulance arrived and the paramedic who tended to Ruaraidh heard him (Ruaraidh) say,(i) ‘Anna and Caitlyn… I thought they were my friends, but they did this to me… why?’ and (ii)’... oh, my head hurts, they hit me with something, I’m a bit in shock’ Ruaraidh then fell into unconsciousness. At Anna and Caitlyn’s trial in the Crown Court, the prosecution wish to adduce evidence of the oral statements made by Ruaraidh made to the paramedic to prove that Anna and Caitlyn committed the assault
a) Explain why the oral statement at made by Ruaraidh to the paramedic at (i) is hearsay.
[2 marks]

a) The oral statement is being admitted as evidence of the matter stated [1 mark] there is a statement of the matter the prosecution seek to prove which is not an implied statement [1 mark] and the maker of the statement intended to cause another person to believe the matter stated [1 mark]. Total 2 marks.

16


b) Assuming the admissibility of the statement made by Ruaraidh is disputed, explain the procedure under the Criminal Procedure Rules 2015 which the prosecution must follow in order to admit the statement under the statutory exception relating to the unavailability of witnesses?
[3 marks]


b) The prosecution must serve a notice to admit evidence of hearsay on the court and each other party [1 mark]. Any of the following will get one mark: the notice must identify the hearsay; set out facts the party relies on to make the statement admissible; explain how the facts will be proved, if disputed; explain why the evidence is admissible; attach to the notice a statement or document containing the hearsay [1 mark]. Notice must be served within 14 days of a not guilty plea [1 mark]. The court may determine the application to admit the evidence at a hearing in public or in private [1 mark] or may determine the application without a hearing [1 mark]. Total 3 marks.

17

c) Assuming both statements at (i) and (ii) are hearsay, on what basis at common law might the prosecution seek to admit them?
[3 marks]

c) The prosecution may seek to admit the statement (i) using the common law res gestae exception [1 mark] on the basis that Ruaraidh was so emotionally overpowered by the event that the possibility of concoction can be disregarded [1 mark]. In relation to statement (ii), again using the common law res gestae exception, but this time on the basis that the statement relates to a physical sensation or mental state [1 mark]. Total 3 marks. NB- to get all three marks, you must mention the res gestae exception and under the exception, the different basis, for the admission of statements (i) and (ii).


18

d) A prosecution witness to the assault, Henry, is available to give oral evidence but an issue arises as to whether he has attained the age of 14 and should give his evidence sworn or unsworn. The prosecution wish to admit evidence of Henry’s age to prove that he has attained the age of 14 and resolve the issue that he should give sworn evidence. Explain how the prosecution might prove Henry’s age by reference to the applicable common law exception to the rule against hearsay.
[2 marks]

d) The prosecution might rely on exception relating to public information, so his birth certificate might be adduced [1 mark]. A person may give evidence of his age or date or place of birth without that person having personal knowledge [1 mark]. Total 2 marks.

19

Q1 HS 3

See s 114(2)(a)-(i) (BCrimP F16.38)
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

20

Q2

See BCrimP F16.90
(i) See s 121(1): multiple hearsay is a hearsay statement which is admissible to prove the fact that an earlier hearsay statement was made; under s 121(2), a ‘hearsay statement’ means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.
 
(ii) See s 121(1)(a)-(c): a hearsay statement is not admissible to prove the fact that another hearsay statement was made unless
(a) either of the statements is admissible under section 117, 119 or 120,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

21

Q3

See BCrimP F16.8 and s 123 (3)(a) and (b):

A person will only have the required capability if, at the time he made the statement, he is capable of understanding questions put to him about matters stated, and of giving answers which can be understood.

22

Q4

(i) See BCrimP F16.8. See s123 (4)(a)-(b):
 
“(4)Where by reason of this section there is an issue as to whether a person had the required capability when he made a statement—
(a)proceedings held for the determination of the issue must take place in the absence of the jury (if there is one);
(b)in determining the issue the court may receive expert evidence and evidence from any person to whom the statement in question was made;”

(ii) See s123(4)(c): the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.

23

Q5

See BCrimP F16.92. See s 124(2) & (3). S 124(2) states that where a hearsay statement is being adduced, the evidence that may be admitted as relevant to credibility is as follows:
 
“(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;

(b) evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;

(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.”

24

Q6

See BCrimP F16.93 &16.94 and s125(1).

If at any time after the close of the prosecution case the judge is satisfied the case against the accused is based wholly or partly on hearsay evidence and the hearsay evidence is so unconvincing that, considering its importance to the case against the accused, his conviction would be unsafe, the judge must direct the jury to acquit the defendant, or if it is thought there should be a retrial, discharge the jury.

25

Q7

See BCrimP F16.93 &16.94 and s 126(1) & (2).
S 126(1) (b) states that the court may refuse to admit a hearsay statement where it “is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.”
 
S 126(2) states that nothing in the hearsay provisions of the CJA prejudices, “(a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).”

26

Pq 1 key

Prosecution may seek to adduce phone call to rebut defence that Adam, not John, committed offence;
Defence will argue low probative value as denials not made to police and statement self-serving;
Consider & apply factors in s.114(2)(a)- (i);
Note R v Seton [2010] EWCA Crim 450 & R v Finch [2007] 1 WLR 1645, CA

“It would not normally be in the interests of justice for
evidence which the giver is unprepared to have tested to
be put before the jury.” (R v Finch)
Consider also safeguards and exclusionary discretion (CJA 2003, s.124, 125 & 126, & PACE s.78).

27

PQ2 key

Consider whether each statement in a multiple hearsay ‘chain’ might be admitted separately under another exception before moving to s.121 (R v Walker [2007] EWCA Crim 1698);

When applying s.121(1)(c), consider value of evidence and take into account reliability (R v Musone [2007] 1 WLR 2467, CA);

In this question, the evidence is of high value, but is it reliable?

28

PQ3 key

Capability- consider under what provision the statement is being adduced.
If under s116(2)(b) then s.123(1) applies;
If under s.117(2), s.123(a) and (b) apply;
Consider whether an issue as to capability arises for the purposes of s.123(3) and, if so, apply s.123(4).

Credibility- s.124(2)(a) may apply where evidence relevant to credibility would have been admissible, eg. where it would have been admissible in cross-examination under an exception to the rule of finality or under s100;
S.124(2)(b) may apply even if the evidence might not otherwise have been admissible due to the rule of finality;
S.124(2)(c)- inconsistent statements admissible.

CJA 2003, s.125- stopping case where evidence is unconvincing;

CJA 2003, s.126- waste of time and /or PACE 1984, s.78 & common law discretion, and any other power of the court to exclude evidence at its discretion (whether by preventing questions or otherwise).

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Interests of justice and safeguards

Interests of justice
S.114(1)(d) & s.114(2)- first hand hearsay;
S 121(1)(c)- multiple hearsay- high value, taking into account reliability. Consider s.121(1)(a) first.

Safeguards
S.123 capability- consider under what provision the hearsay evidence is to be adduced;
S.124 credibility- esp. s.124(2)(a)&(b);
S.125 power to stop case where hearsay evidence is unconvincing;
S.126 undue waste of time & exclusionary discretions.

30

First ask yourself whether the out of court statement is actually hearsay. If you are admitting
the statement for a purpose other than to assert that what is in the statement is true (ie you
are not seeking to admit it as ‘evidence of matters stated’), then the statement is not hearsay
and it will be admissible if relevant to an issue in the case and not excluded under an
exclusionary rule or discretion. Examples are statements which are admitted to show the
state of mind of the maker or the hearer of the statement, or statements which form part of the
offence charged.
________________________

2. Note what a ‘statement’ actually is, for the purposes of the hearsay provisions of CJA 2003. It
is a representation of fact or opinion by a person by whatever means (s 115(2)). It can be
oral or in writing, by gesture, or in pictorial form, and it can be a sketch or photofit.
__________________________

3. If you are admitting the statement to assert that what it states is true (ie as evidence of
matters stated), ask yourself whether it was one of the purposes of the maker of the
statement to cause another person(s) to believe that what is stated is true, or to cause a
person or a machine to operate on the basis that it is true. If this was not one of the purposes
of the maker of the statement, the statement is not hearsay. See CJA s 115(3)(a)&(b).
_________________________
4. If the statement is an implied assertion (ie. the matter you seek to prove by the statement is
implied by what is stated, rather than expressly stated), then it is not hearsay and is
admissible if relevant and not excluded by another exclusionary rule or discretion (see R v
Twist (2011) 175 JP 257, CA, which says that before the hearsay provisions apply to a
statement, there has to be a ‘statement’ of the matter the party says the statement proves,
and it would seem that such a statement needs to be express).

31

_________________________
5. If you decide that the statement is hearsay, it is not admissible unless an exception applies.
Note the statutory exceptions and the common law exceptions which are retained in CJA
2003, s 118.
_____________________________________
6. Now consider the circumstances in which the hearsay statement is sought to be introduced,
to decide the most appropriate exception. For example, is it a case of a witness giving
evidence of his/her own previous statement? If so, it may be admissible as evidence of
matters stated under CJA s 120 to (i) rebut a suggestion that his/her evidence has been
fabricated (s 120(2)), (ii) where s/he is being cross examined on it having refreshed her
memory (s 120(3)), or (iii) where the any of 3 conditions in s120(5)-(7) are met and s/he says
that to the statement states the truth to the best of his/her knowledge and belief.

___________________________
7. Is it a previous statement which is inconsistent with oral evidence? If so, it may be proved
and admitted under the Criminal Procedure Act 1865 ss 4 & 5, & under CJA s 119, it will be
admissible as evidence of matters stated. If it is your own witness, and the previous statement
is inconsistent with oral evidence, it may be proved and admitted under the Criminal
Procedure Act 1865, s 3 and, again under s 119, may be admitted as evidence of matters
stated.
_________________________
8. Is it that the witness is unavailable? If so, the statement may be admissible if the conditions in
CJA, s 116 are met. Note that where the condition relied on is that the witness is unavailable
through fear, leave is required and when considering whether to grant leave, the court should
have regard to relevant factors (see s 116(2)(e),(3) & (4)).

32

__________________________

9. Is it that the statement you want to admit is contained in a business document? If so,
consider whether it meets the conditions for admissibility under s117. In particular, consider
whether oral evidence of the matter would have been admissible (s 117(1)(a)), whether the
person who supplied the information in the document could reasonably be supposed to have
personal knowledge of the matters and whether the person (including a person in a ‘chain’)
who received or created the document did so in the course of a business , trade profession
etc. (see s 117(2(a)-(c)). Bear in mind that the person who supplies the information that goes
into the document does not have to be acting the course of a business, although it might well
be the case that the person who both supplies the information and creates the document are
the same person and are acting in the course of a business. Finally, ask yourself whether the
document was prepared in contemplation of criminal proceedings: if so, are the further
requirements of s 117(5) met?
__________________________
10. If the statement is not admissible by any of the exceptions above, consider whether it might
be admitted in the interests of justice. See CJA, 2003, s114(1)(d) and note that s 114(2)(a)
provides a non-exhaustive list of factors which the courts should take into consideration when
deciding whether it is in the interests of justice to admit a hearsay statement.

__________________________
11. Note that a number of common law rules concerning hearsay are preserved under CJA 2003,
s 118. Although most hearsay is sought to be admitted through the fairly comprehensive
statutory exceptions, the common law exceptions do sometimes come into play. You should
be aware of the common law rule of res gestae (s 118 para 4), the rule relating to confessions
(s 118, para 5) and to admissions by agents (s 118, para 6). In relation to res gestae, a
statement to be admitted as evidence of matters stated where the maker was emotionally
overpowered by an event so that the possibility of concoction or distortion can be
disregarded, or the statement is so closely connected to the act that the act cannot be
properly evaluated without the statement, or the statement relates to a physical sensation or
mental state (such as intention or emotion). Also be aware of the other common law
exceptions: public documents, reputation as to character, reputation or family tradition,
common enterprise and expert evidence.
_________________________
12. If you identify the statement as a multiple hearsay (ie it is a hearsay statement containing
within it another hearsay statement), it will only be admissible if the conditions of CJA s 121
are met. These are, (i) either of the statements would have been admissible under ss 117,
119 or 120; or (ii) all parties agree; or (iii) the value of the evidence (taking into account
reliability) is so high that the interests of justice require its admission. Note that under s 121
multiple hearsay refers to a hearsay statement being used to prove the fact that another
(earlier) hearsay statement was made. If the conditions for admissibility are met, then one
hearsay statement will be admitted to prove an earlier hearsay statement was made and then
both statements are admissible as evidence of matters stated in them (see s 121(2)).
__________________________

33

13. In relation to safeguards to protect against unreliable hearsay, consider whether the maker of
the statement had the required capability to make the statement at the time it was made.
Capability is analogous with competence (see s 123(3)) and where the issue arises, the
burden is on the party seeking to adduce the statement and the standard is the balance of
probabilities (see s 123(4)). Evidence relevant to capability may include expert evidence and
should be heard in the absence of the jury. Where the maker of the statement is deemed not
have been capable at the time of making the statement, the statement will be inadmissible.
____________________________
14. Consider also whether any evidence might be admitted to undermine the credibility of the
maker of the statement. This could include any evidence affecting credibility which would
have been admissible had the maker of the statement attended to give evidence at trial (see s
124(a)). It might also include evidence which might not have been put because of the rule of
finality (see s 124(2(b)), and also inconsistent statements (see s 124(2)(c)).

___________________________
15. Note also that where hearsay evidence is admitted which, at any time after the close of the
prosecution’s case, is so unconvincing that, considering its importance to the case against the
accused, his conviction would be unsafe, the court must direct the jury to acquit or, where it
considers there ought to be a retrial, discharge the jury (see s 125(1)).
_________________________
16. Finally, remember that, by virtue of CJA s 126, the court retains a discretion to exclude
hearsay evidence, (i) where there is a danger that admitting it would result in an undue waste
of time (s 126(1)), and/or, (ii) where it is unfair prosecution evidence and ought to be excluded
under s 78 or under the common law power (the prejudicial effect of the evidence outweighs
its probative value). The court also has a general discretion to exclude hearsay evidence
adduced by any party under any other power to exclude evidence at its discretion including
the power to prevent questions from being put (see s 126(2)). An example might be the
power to prevent questioning about sexual history or prevent questions being put to
vulnerable witnesses.

34

Peter is charged with assaulting Martin who is a train station manager. The facts alleged are that Peter was waiting on the platform for his train, when an announcement was made that his train was delayed. He became angry, went over to Martin who was on duty on the platform, and violently pushed him. As a result of the push, Martin fell over and hit his head. Peter’s defence is that any contact with Martin was accidental- the platform was crowded and he (Peter) was just trying to make his way to a less crowded part and this involved pushing through the crowd.

The prosecution wish to call a witness Anna, to give evidence (i) that she saw Peter deliberately push Martin; and (ii) that just before she saw Peter push Martin, she heard Peter shout at him:

“Oi, you! You lot, you’re a bunch of fucking idiots…I pay over grand a year for this ticket. Get the fucking trains here on time. Come on, speak up… got nothing to say for yourself…?”
The prosecution also wish to adduce evidence of a CCTV recording, which shows the incident.

a) Explain, with reasons, whether Anna’s evidence about what Peter said (at (ii)) is hearsay.

[2 marks]



-

35

b) Explain, with reasons, whether the CCTV recording is hearsay. [1 mark]

-

36

c) If Anna was unable to attend to give evidence because she had suffered a stroke, explain whether that part of her statement which refers to her observation of Martin being pushed by Peter (at (i)) could be admitted by the prosecution?
[2marks]

-

37

d) If instead, the situation was that Anna refused to give evidence on the basis that Peter lived in the same street as her, has gang affiliations and she is frightened of him, explain the legal test for admissibility that would apply to that part of her statement which refers to her observation of Peter pushing Martin (at (i))?
[3 marks]

-

38

e) If Anna was unavailable and her statement at (i) was admitted, explain with reasons whether Peter might be able to admit evidence of another earlier statement by Anna in which she states that it was possible that Martin may have been pushed by another irate person who was standing close by Peter ?
[1 mark]

-

39

f) If the issue in the case is that Peter had suffered a manic episode and was unable to form the requisite mens rea, and there is a statement upon which an expert giving evidence of Peter’s mental state properly based on an opinion or inference, how may the statement be treated by the tribunal of fact (ie what would be the evidential status would it have for the tribunal of fact)?

[1 mark]

--

40

1. Keith, who is 27, has pleaded guilty to an indictment containing two counts of Rape, contrary to s.1 of the Sexual Offences Act 2003 and one count of Grievous Bodily Harm, contrary to s.18 of the Offences Against the Person Act 1861 (GBH).
It is stated in the pre-sentence report that on both occasions he claims to have been under the influence of both alcohol and drugs, but no further assessment has been made at this stage.
Both Rape and s.18 GBH carry a maximum of life imprisonment and are both specified offences listed in Sch.15 of the Criminal Justice Act 2003.
Additionally, both Rape and s.18 GBH are listed in the new Sch. 15B of the CJA 2003. Rape is also an offence listed in Schedule 3 of the Sexual Offences Act 2003.
a) How are rape and GBH classified?

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b) What three types of sentence can be imposed on someone who is deemed to be a dangerous offender?

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c) Why do the offences with which Keith is indicted fall within the dangerous offender provisions?

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d) Are the offences with which Keith is indicted ‘serious offences’? Explain your answer.

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e) What is the definition of dangerousness?
f) What factors must the court take into account in making the assessment of dangerousness?
g) What ancillary orders will be considered and why?

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2. Pankaj is convicted on a single indictment of one count of Possession of Heroin, contrary to s.5(2) of the Misuse of Drugs Act 1971 and one count of Assault Occasioning
Actual Bodily Harm, contrary to s.47 of the Offences Against the Person Act 1861 (ABH).
Pankaj is currently serving a sentence of two years’ imprisonment for Robbery. The facts of the offence are that Pankaj was found in possession of the heroin during a search of his prison cell. As the prison officer removed the wraps from under the mattress, Pankaj punched him
on the back of head. The prison officer fell forward and hit his head on the bed frame causing severe bruising. You are at court to represent Pankaj for sentence. The judge is minded to impose a custodial sentence for each offence, the sentences to run concurrently to one another, but consecutively to the custodial sentence already being served. The prosecutor has applied for compensation for the prison officer. Additionally the prosecutor has started confiscation proceedings, but
indicated to you that they do not have all the information they need to conclude confiscation proceedings today.

a) What is the classification of Possession of Heroin and ABH?

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b) What application do you anticipate the prosecutor will make today in relation to the
confiscation proceedings?

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c) Will this affect the sentence that can be passed by the judge?

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d) The pre-sentence report states that all of Pankaj’s offending is motivated by financial
gain to support his own drug habit. He has never been employed and is unlikely to gain
useful employment upon his eventual release from custody. What representations
should you make in mitigation in terms of the compensation order?

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Anna and Caitlyn are jointly charged with committing grievous bodily harm with intent against Ruaraidh. The alleged facts are that they launched an unprovoked violent assault on Ruaraidh outside a public house which involved the use of an unidentified weapon, and as a result of the assault Ruaraidh sustained serious permanent brain damage and is no longer able to speak or comprehend the speech of others. Soon after the alleged assault, an ambulance arrived and the paramedic who tended to Ruaraidh heard him (Ruaraidh) say,(i) ‘Anna and Caitlyn… I thought they were my friends, but they did this to me… why?’ and (ii)’... oh, my head hurts, they hit me with something, I’m a bit in shock’ Ruaraidh then fell into unconsciousness. At Anna and Caitlyn’s trial in the Crown Court, the prosecution wish to adduce evidence of the oral statements made by Ruaraidh made to the paramedic to prove that Anna and Caitlyn committed the assault

a) Explain why the oral statement at made by Ruaraidh to the paramedic at (i) is hearsay.
[2 marks]


a) The oral statement is being admitted as evidence of the matter stated [1 mark] there is a statement of the matter the prosecution seek to prove which is not an implied statement [1 mark] and the maker of the statement intended to cause another person to believe the matter stated [1 mark]. Total 2 marks.

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b) Assuming the admissibility of the statement made by Ruaraidh is disputed, explain the procedure under the Criminal Procedure Rules 2015 which the prosecution must follow in order to admit the statement under the statutory exception relating to the unavailability of witnesses?
[3 marks]


b) The prosecution must serve a notice to admit evidence of hearsay on the court and each other party [1 mark]. Any of the following will get one mark: the notice must identify the hearsay; set out facts the party relies on to make the statement admissible; explain how the facts will be proved, if disputed; explain why the evidence is admissible; attach to the notice a statement or document containing the hearsay [1 mark]. Notice must be served within 14 days of a not guilty plea [1 mark]. The court may determine the application to admit the evidence at a hearing in public or in private [1 mark] or may determine the application without a hearing [1 mark]. Total 3 marks.


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c) Assuming both statements at (i) and (ii) are hearsay, on what basis at common law might the prosecution seek to admit them?
[3 marks]

c) The prosecution may seek to admit the statement (i) using the common law res gestae exception [1 mark] on the basis that Ruaraidh was so emotionally overpowered by the event that the possibility of concoction can be disregarded [1 mark]. In relation to statement (ii), again using the common law res gestae exception, but this time on the basis that the statement relates to a physical sensation or mental state [1 mark]. Total 3 marks. NB- to get all three marks, you must mention the res gestae exception and under the exception, the different basis, for the admission of statements (i) and (ii).

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d) A prosecution witness to the assault, Henry, is available to give oral evidence but an issue arises as to whether he has attained the age of 14 and should give his evidence sworn or unsworn. The prosecution wish to admit evidence of Henry’s age to prove that he has attained the age of 14 and resolve the issue that he should give sworn evidence. Explain how the prosecution might prove Henry’s age by reference to the applicable common law exception to the rule against hearsay.
[2 marks]

d) The prosecution might rely on exception relating to public information, so his birth certificate might be adduced [1 mark]. A person may give evidence of his age or date or place of birth without that person having personal knowledge [1 mark]. Total 2 marks.