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Flashcards in Week 7 materials Deck (28):
1

MCQ1

You instructed to prosecute a trial for sexual assault on a child under 13 contrary to s7 of the Sexual Offences Act 2003. The alleged complainant is 7 year old Mohammed. Assuming that the ‘primary rule’ is not disapplied, which of the following special measures MUST the court impose in order to assist Mohammed in giving evidence at trial.

i) admission of Mohammed’s video interview as his evidence-in-chief;
ii) the use of a live link for any non-video testimony;
iii) the use of screens for any non-video testimony;
iv) an intermediary to assist him in cross-examination.

A) i, ii, and iv.
B) i and iii
C) i, iii and iv,
D) i and ii.

CORRECT ANSWER: D

Under s.16(1)(a) YJCEA 1999, as amended, Mohammed is automatically eligible for special measures. As a child witness the primary rule must be applied under s21 YJCEA 1999; this requires that a video recorded interview must be admitted under as Mohammed’s evidence-in-chief (s.21(3)(a)) and that any other evidence given by Mohammed must be given by means of a live link (s.21(3)(b)).
Accordingly answer D is correct.

Once the primary rule has been applied, the court may order further special measures that are likely to improve the quality of Mohammed’s evidence (s19). This could include the assistance of an intermediary (s29 YJCEA 1999)

As Mohammed will not be present in the court, screen would serve no purpose.

2

MCQ 2
The prosecution wishes to call 12 year old Mathis to give evidence in a burglary trial.

Which of the following statements is CORRECT?

A) As he is under 14 years of age, Mathis is not a compellable witness.
B) The prosecution must make the court sure that Mathis is competent to give evidence at trial.
C) Mathis must give unsworn evidence if he is called as a witness.
D) Mathis may give sworn evidence if he has sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth under oath.

CORRECT ANSWER: C

As he is under 14 years of age, Mathis must give unsworn evidence, s55(2) YJCEA 19999.

If Mathis were at least 14 years old the court could consider whether he should give sworn evidence. If this is doubt the court would determine whether Mathis has sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth under oath (s55(2) YJCEA 1999). As Mathis is under 14 years old, he cannot give sworn evidence. It follows that answer D is incorrect.

If there is any question about Mathis’s competence to give evidence, the prosecution must satisfy the court on the balance of probabilities that he is competent (s54(2) YJCEA 1999), there is no obligation to prove competence to the criminal standard. Once he is shown to be competent, the common law dictates that Mathis’s is a compellable witness. Accordingly answers A and B are also incorrect.

3

Janice is accused of theft. The prosecution wishes to call her husband Abraham to give evidence against her.

Which of the following statements is CORRECT?

A) Abraham is not competent to give evidence against his wife.
B) Abraham is compellable as a prosecution witness.
C) Abraham can choose to give evidence against his wife.
D) Abraham cannot be treated as a hostile witness if he gives evidence.

CORRECT ANSWER: C

Abraham’s competence as a witness is not based upon his marital status. Under s53(1) YJCEA 1999 he is deemed to be competent but if this is in doubt his competence is determined by his ability to understand questions and give answers to them (s53(3)).
Abraham is not a compellable witness against his spouse, Janice (s80(2) PACE 1984), but he may choose to give evidence against her. Hence C is correct. If Abraham chooses to testify, he should be advised by the judge that he has the right to refuse to give evidence but that if he chooses to give evidence he will be treated like any other witness. If he gives evidence, Abraham will be treated like an ordinary witness and therefore can be treated as hostile should the nature of his evidence justify it. See Pitt [1983] QB 25.

4

Contents of BCP

Part A: General principles of criminal law
Part B: Offences
Part C: Road Traffic Offences
Part D: Procedure
Part E: Sentencing
Part F: Evidence

There are four appendices, containing a range of resources:

Appendix 1: Codes of Practice under the Police and Criminal Evidence Act 1984
Appendix 2: Attorney-General's Guidelines
Appendix 3: The Code for Crown Prosecutors
Appendix 4: Disclosure

There is also a supplement which includes:

• The Criminal Procedure Rules;
• The Criminal Practice Directions; and
• Sentencing Guidelines issued by the Sentencing Council.

5

Part 1 - 5 PACE

Part 1 of PACE and Code A: police powers to search a person or a vehicle without first making an arrest (‘stop and search’).

Part 2 of PACE and Code B: the issue and execution of search warrants to enable the police to enter premises and to seize and retain property (these warrants are normally issued by magistrates, but in the case of sensitive material will be issued by Crown Court judges).

Part 3 of PACE: powers of arrest by police officers and by other people (Code G gives further detail on police powers of arrest).

Part 4 of PACE: detention of suspects by the police (including limitation of the length of time for which a person can be detained without charge).

Part 5 of PACE and Code C: questioning of suspects detained by the police (Code E deals with audio recording police interviews with suspects and Code F deals with video recording such interviews).

6

Code C?

Code D?

Of particular importance in Code C are sections C10 and C11. Code C10 governs when a caution must be given, and the terms of that caution. In summary, once there are grounds to suspect a person of an offence (i.e. he is being questioned as a suspect, not as a mere witness), a caution must be administered before any further questions are asked. The terms of the caution are:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

[In the Evidence module, you will be studying s 34 of the Criminal Justice and Public Order 1994, which enables adverse inferences to be drawn if an accused, at trial, relies on facts which should have been revealed to the police when he or she was being interviewed.]

Code C11 governs the conduct of police interviews and requires accurate interview records to be kept.

Code D gives detailed guidance on the main methods used by the police to identify people in connection with the investigation of offences. Section D3 is of particular importance. This governs identification of suspects and lays down different rules depending on whether the suspect’s identity is unknown or whether the police already have a suspect.

7

Structure of criminal courts:
2 courts:
Mags
Crown

Summary

Indictable

Triable either way

Indictable only...

This division is reflected in the threefold classification of criminal offences:

• Summary offences: these are offences which can be tried only in a magistrates’ court;

• Indictable offences: there are two types of indictable offence, namely

o offences which are ‘triable either way’ (offences which may be tried either in a magistrates’ court or in the Crown Court), and

o offences which are ‘indictable-only’ (offences which can be tried only in the Crown Court).

Where an offence is triable either way, the procedure by which it is decided whether the case should be tried in a magistrates’ court or in the Crown Court is known as a ‘mode of trial’ hearing or an ‘allocation’ hearing.

8

Mags court

The court will comprise either ‘lay justices’ or a District Judge (Magistrates’ Courts). Lay justices are members of the public who have gone through a selection and training process to enable them to sit as magistrates (or ‘justices of the peace’, as they are sometimes known); they will not be legally qualified. A District Judge, on the other hand, is legally qualified (as a barrister, solicitor or legal executive).

The court is assisted by a ‘clerk’ or (as they tend to be known now) ‘court legal adviser’, who will be legally qualified and will be able to advise the magistrates on points of law, procedure and evidence.

The defendant’s first court appearance in a criminal case will always be in a magistrates’ court, but he or she will only be tried in the magistrates’ court if either:
(a) the offence is a ‘summary’ offence, or
(b) the offence is triable either way, and both the accused and the magistrates have agreed that the case should be tried ‘summarily’ (i.e. in a magistrates’ court).

Justices and District Judges are addressed as ‘sir’ or ‘madam’.

9

Crown Court

The Crown Court exercises three different jurisdictions.

Firstly, it is a trial court. If an offence is triable only on indictment, or if the offence is triable either-way but the mode of trial/allocation hearing resulted in a decision that the case should be tried in the Crown Court, the trial will take place in the Crown Court. Usually the trial will take place before a judge and jury (although there are certain instances, for example where jury intimidation has taken place or is likely to take place, when the trial can take place in front of a judge sitting without a jury).

Secondly, the Crown Court deals with committals for sentence from magistrates’ courts. This occurs where a defendant pleads guilty to, or is found guilty of, an either-way offence in a magistrates’ court, but that court takes the view that its sentencing powers are insufficient. In such a case, the defendant is committed for sentence to the Crown Court, which has greater sentencing powers. When dealing with committals for sentence, the Crown Court comprises a judge sitting alone.

Thirdly, the Crown Court is an appellate court, hearing appeals (against conviction and/or sentence) from magistrates’ courts. When the Crown Court is exercising this jurisdiction, it comprises a judge and two lay justices.

There are three types of Crown Court judge:

• High Court judges, who deal only with very serious cases (addressed ‘my Lord’ or ‘my Lady’ and referred to ‘your Lordship’ or ‘your Ladyship’);
• Circuit judges (addressed as ‘your honour’); and
• Recorders, who are part-time judges (addressed as ‘your honour’).

10

The procedural consequences of the threefold classification of offences can be summarised thus:

2.5.1 Summary offences

 D appears in a magistrates’ court;

 D enters plea:

 “Guilty” > sentencing stage;

 “Not guilty” > trial (in magistrates’ court).


2.5.2 Either-way offences

 D appears in a magistrates’ court;

 There is a ‘Plea Before Venue’ hearing:

 “Guilty”: sentence is passed or D is committed to the Crown Court for sentence;

 “Not guilty” (or no indication of plea) > determination of mode of trial:-

 Mode of Trial/Allocation hearing:

 Decision in favour of summary trial > the case is sent to the Crown Court for trial and a Plea and Trial Preparation Hearing (‘PTPH’) takes place in the Crown Court;

 Decision in favour of summary trial > magistrates’ court trial.


2.5.3 Indictable-only offences

 D appears in a magistrates’ court;

 Case sent to Crown Court;

 A PTPH takes place in the Crown Court.

11

Active case management is a very important part of modern criminal procedure.

Rule 1.1(1) of the Criminal Procedure Rules says that the ‘overriding objective ... is that criminal cases be dealt with justly’, Rule 1.1(2) goes on to explain that dealing with a criminal case justly includes:

You will find a useful summary of the effect of these provisions in ‘Essential Case Management: Applying the Criminal Procedure Rules’: http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Protocols/applying-crim-procedure-rules-dec-2009.pdf

(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account―
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.

Rule 1.2(1)(a) requires each participant, in the conduct of each case, to prepare and conduct the case in accordance with the overriding objective.

The overriding objective is supported by the court’s case management powers, which are set out in Part 3. Rule 3.2(1) requires active case management by the court. Rule 3.2(2) says that active case management includes:

(a) the early identification of the real issues;
(b) the early identification of the needs of witnesses;
(c) achieving certainty as to what must be done, by whom, and when, in particular by the
early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case; and
(h) making use of technology.

The conduct of criminal trials (and appeals) is governed by rule 3.11. This provides that, in order to manage a trial (or appeal), the court:

(a) must establish, with the active assistance of the parties, what are the disputed issues;
(b) must consider setting a timetable that—
(i) takes account of those issues and of any timetable proposed by a party, and
(ii) may limit the duration of any stage of the hearing;
(c) may require a party to identify—
(i) which witnesses that party wants to give evidence in person,
(ii) the order in which that party wants those witnesses to give their evidence,
(iii) whether that party requires an order compelling the attendance of a witness,
(iv) what arrangements are desirable to facilitate the giving of evidence by a witness,
(v) what arrangements are desirable to facilitate the participation of any other person, including the defendant,
(vi) what written evidence that party intends to introduce,
(vii) what other material, if any, that person intends to make available to the court in the presentation of the case, and
(viii) whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and
(d) may limit—
(i) the examination, cross-examination or re-examination of a witness, and
(ii) the duration of any stage of the hearing.

12

Question 1: Jonathan is charged with assaulting Paul. The assault is alleged to have taken place in the Red Lion public house.

Identification procedures are carried out at the police station. Paul fails to identify Jonathan as his assailant. However, David (who claims to have witnessed the assault) does identify Jonathan as the person who assaulted Paul.

When interviewed by the police, Jonathan denies the offence. He says that, at the relevant time, he was playing snooker with a friend, Lee, in the Highwayman public house.

(a) What information about the prosecution case is Jonathan entitled to receive by the time of the first hearing in the magistrates’ court? [1 mark]

(b) What information about any ‘unused material’ in the hands of the prosecution is Jonathan entitled to receive, and why? [2 marks]

(c) Must the prosecution disclose the fact that David asked if there was a reward before agreeing to take part in the identification procedure? [1 mark]

(d) Must the prosecution reveal the fact that Lee has a conviction for obtaining property by deception and another for perverting the course of justice? [1 mark]

(e) What details, if any, is Jonathan obliged to reveal as regards his alibi defence? [2 marks]

(f) Is Jonathan obliged to reveal to the prosecution that he plans to call a witness, Timothy, who will say that Paul told him (Timothy) that the assault was actually committed by Peter? [1 mark]

(g) Must the prosecution tell Jonathan that a witness (whom the police believe is lying) came forward to say that he saw Jonathan and Lee playing snooker together at the relevant time? [1 mark]

(h) If the case in tried in a magistrates’ court, what information about the prosecution case is Jonathan entitled to receive before the start of the trial? [1 mark]

-

13

Question 2

You are instructed to prosecute Tom Cawthorne for burglary. A man was seen running from the scene of the burglary by the owner of the house, Samuel Davidson. Mr Cawthorne was arrested following a tip-off to the police by William Smith. An identification procedure was carried out at the police station: Mr Cawthorne was picked out by Davidson. Mr Cawthorne made no comment to the police during his interview. Mr Smith is known to the police as a recidivist burglar and also as a paid informant.

Consider whether the following pieces of evidence in the possession of the Prosecution should be disclosed to the defence:

(a) Evidence that Mrs Davidson, who was standing next to her husband at the time and saw the burglar running away, failed to make a positive identification at the police station identification procedure;

(b) Evidence that Mr Davidson has a conviction for defrauding an insurance company;

(c) Details of the person who tipped-off the police to arrest Mr Cawthorne for the burglary.

(d) What difference (if any) would it make to your answer to (c) if Mr Cawthorne had said in his police interview that he believed that a former friend of his called Bill (last name unknown) committed the burglary and that Bill is trying to frame him because they fell out over a loan which Bill had failed to repay?

-

14

Question 3
You are instructed to represent Jamie Smith, aged 15, who appears in the Youth Court charged with sexual assault on Tricia Thompson, aged 13. Your client has vigorously denied the charge and tells you that he believes that Tricia has been in trouble at school for making false allegations of sexual misconduct by teachers and that Social Services have been involved.

Which ONE of the following correctly states how the defence should obtain relevant material contained in confidential records held by the School and by Social Services?

[A] Make an application to the County Court for an order requiring disclosure of relevant documents.

[B] Make an application to the Youth Court for a witness summons requiring disclosure of relevant documents.

[C] Make an application to the Crown Court for a witness summons requiring disclosure of relevant documents.

[D] Make an application to the High Court for an order requiring disclosure of relevant documents.

-

15

Competence and compellability

Competence
“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence” (s53(1) YJCEA 1999).

Compellability
a competent witness is also compellable

16

Compellability of spouse

On behalf of D
all cases s80(2) PACE

On behalf of Prosecution & Co-D
Specified Offences s80(3) PACE:
Assault, injury or threat of injury to spouse
Assault, injury or threat of injury to V under 16
Sexual offence in respect of V under 16
Aiding, abetting, counselling procuring the above.

17

Securing attendance of W

Witness Summons
secure attendance of a person who is likely to be able to give evidence likely to be material;
secure production of documents or things likely to be material evidence.

Warrant at outset
If satisfied by evidence on oath that the witness is unlikely to comply with summons

Court can issue warrant if witness fails to respond to summons

S97 Magistrates’ Courts Act 1980

S2-4 Criminal Procedure (Attendance of Witnesses) Act 1965

CrimPR 2015 rule 17

18

Key Questions (4i)
Grounds for special measures (YJCEA 1999)

If the quality (coherence, completeness of accuracy (s16(5)) of the evidence given by a witness is likely to be diminished because of:
Physical or mental incapacity (s16(1)(b))
Fear or distress (s17(1))
Presumption of fear or distress:
Complainants in sexual offence cases or trafficking cases;
Witnesses in firearms, knives and bladed article trials (s17(4),(5), schedule 1A).
 
If the witness is under 18 (s16(1)(a)

19

Key Questions (4ii)
Range of Special Measures (YJCEA 1999)

Screens (s23)
live link (s24)
evidence given in private (s25)
removal of wigs and gowns (s26)
video recorded examination in chief (s27)
video recorded cross examination or re-examination (s28)
examination of witnesses through an intermediary (s29)
use of aids to communication (s30).

20

Vulnerable witnesses

‘Ground rules’ hearing in every case, save in exceptional circumstances
Cover (amongst other things) length of questioning, the frequency of breaks and the nature of the questions to be asked (e.g. no ‘tag’ questions).
(Lumemba [2014] EWCA Crim 2064)

CrimPD3E.4/5 restrictions on advocates ‘putting their case’

21

Special Measures available to accused

‘D’s excluded from special measures regime, see R (S) v Waltham Forest Youth Court [2004] 2 Cr App R 335;


Under s. 33A YJCEA 1999 the court may direct that D gives evidence via a live link if it is in the interests of justice AND, if D is over 18, he has a mental disorder or a significant impairment of intelligence and social function leaving him unable to participate effectively and live link would permit more effective participation.

22

Competence & compellability of Ellen

Ellen competent, YJCEA, s.53(1);

Compellable re assault on her by Ryan, s.80(3)(a). Note s.80(2A)(b) PACE 1984- creates an exception to rule that spouses are not compellable in circumstances where there is a specified offence committed against spouse;

Assault on George- not compellable
(s.80(2A)(b) PACE 1984);

Arson- not compellable (s.80(2A)(b) PACE 1984).

23

Q1

Yvette competent for Lee (spouse of D), s.53(1) YJCEA 1999;

Yvette compellable to give evidence for her spouse Lee (s. 80(2) PACE 1984);

Yvette competent to give evidence for Ryan (spouse of co-accused);

Not compellable for Ryan.
s.80(2A)(a)&(3)- ‘spouse and civil partner’ means spouse and civil partner against whom the specified offence was committed. No offence has been committed against Yvette.

24

Qb

Ryan a witness for Lee?

Competent, s. 53(1) YJCEA 1999;

Not compellable, s. 1(1) Criminal Evidence Act 1898;

Would be compellable if he ceased to be a person charged in the criminal proceedings eg if he pleaded guilty at beginning of trial (s.1(1) CEA 1898).

25

Q2 Sarah

(i) Sarah competent and compellable. s. 53(1) YJCEA 1999

(ii) Sarah’s evidence will be sworn. ss. 55 & 56 YJCEA 1999

(iii) GBH with knife - Sarah is eligible for special measures. s.17(5) YJCEA 1999 (witness in proceedings relating to a Sch 1A offence)
Having determined eligibility, the court will assess which special measures will maximise the quality of the witness’s evidence. s19(2).
The court is likely to direct the use of an ABE interview as evidence-in-chief (s.27) & live link for XX (s.24)

(iv) kick and punch (no weapon) - Sarah is not automatically eligible for special measures but will be eligible for special measures if the court is satisfied that the quality of her evidence is likely to be diminished by reason of her fear or distress in connection with testifying in the proceedings. s.17(1) YJCEA 1999

26

Q2 Emily


(i) Emily subject to competence test- ss. 53(1) & 53(3) YJCEA 1999. See also, R v Barker [2010] EWCA Crim 4;
Standard of proof, balance of probabilities where competence raised as an issue by parties or court of own motion;
Court has regard for witness having benefit of special measures and expert evidence may be received (ss. 54(3) & 54(5) YJCEA 1999);
(ii) Cannot give sworn evidence as under 14 (s. 55(2) YJCEA 1999)

(iii) Automatically eligible under s.16(1)(a) as a child witness under age of 18. The court must then determine which measures likely to improve quality of evidence- s.19(2))

It is mandatory to order those special measures identified under s21 as Emily is a child witness.

Measures ordered under s.21 (primary rule) must be, at a minimum, ABE video evidence-in-chief (s.27), XX by live-link (s.24)

Other likely measure: wigs & gowns(s.26)

Procedure: Crim PR 2015, Part 18

27

Q2 John

D’s excluded from special measures regime, see R (S) v Waltham Forest Youth Court [2004] 2 Cr App R 335;


Under s. 33A YJCEA 1999 the court may direct that D gives evidence via a live link if it is in the interests of justice AND, if D is over 18, he has a mental disorder or a significant impairment of intelligence and social function leaving him unable to participate effectively and live link would permit more effective participation.

28

Who can be called?

How can a witness be compelled to attend?

How should oral evidence be given?

Who can be called?
Competence (ss. 53 & 54, YJCEA 1999);
Compellability (common law & s.80, PACE 1984);

How can a witness be compelled to attend?
Witness summons
Witness warrant

How should oral evidence be given?
Sworn (ss.55 & 56 YJCEA 1999);
Special Measures, ss. 16-30 YJCEA 1999;
Vulnerable Ds, s. 33A YJCEA;