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Flashcards in Week 8 Materials Deck (62):
1

Memory refreshing of a witness

Before giving evidence

Whilst giving evidence

Before giving evidence
W may read statement before giving evidence:
Richardson [1971] 2 QB 484

Whilst giving evidence
If he states in oral evidence that the doc records his recollection at the earlier time; and
His recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence
S139 Criminal Justice Act 2003

2

Wholly Exculpatory Statement

A statement which is entirely self-serving. There is nothing within it to suggest that the maker has committed an offence.

Admissibility
Generally not admitted as evidence of truth of the facts stated,
but admitted as relevant evidence of the reaction of the accused when first taxed with incriminating facts.

Pearce (1979) 69 Cr App R 365, Storey (1968) 52 Cr App R 334

3

Mixed statement

A statement containing both exculpatory and inculpatory parts:
“I killed X, if I had not done so, X would certainly have killed me there and then”.

Admissibility
The whole statement is admitted as evidence of truth of the facts stated.

Pearce (1979) 69 Cr App R 365; Sharp [1988] 1 All ER 65

4

Rule against previous consistent statements

A witness is generally not permitted to adduce evidence of a previous statement, whether oral or written, that is consistent with their oral testimony.
(see Roberts [1942] 1 All ER 187; Larkin [1943] KB174; Oyesiku (1971) 56 Cr App R 240).

Rationale
This prevents a witness from bolstering his other evidence by adducing an easily fabricated, self-serving statement.
The fact that a witness said something to someone else on a previous occasion does not confirm his evidence.

5

Rule against previous (in)consistent statements

(in)consistency
Evidence of reaction when first questioned
Evidence of truth of contents

6

Questions in Examination in chief

The general rule is that a witness may not be asked ‘leading questions’
(questions that suggest the answer or assume the existence of facts yet to be established).

A witness must only give evidence of what he or she personally perceived.

Where evidence is elicited through a leading question, it is not inadmissible but the weight attached to it may be substantially reduced (Moor v Moor [1954] 1 WLR 927).

7

Hostile witnesses

A witness for your party, who is

(1) More than ‘unfavourable’ (i.e. giving incomplete or unfavourable evidence)

Not desirous of telling the truth
(Stephen’s Digest of the Law of Evidence 12th ed 1936 Art 147 BCP F6.50)

8

Q1 Simon's statement

W may read statement before giving evidence: Richardson [1971] 2 QB 484


Memory refreshing document: s.139 CJA 2003
A witness may refresh his memory from a document made or verified by him at an earlier time if:
document records W’s recollection; and
recollection significantly better at that time.

No independent recollection: s120(4) and (6) CJA 2003
If a witness has no recollection of events and cannot reasonably be expected to recall the matters in his witness statement, can apply to adduce a statement made when the events were fresh in the witness’s mind.

9

Previous identification

If:
A witness is called to give evidence in criminal proceedings
The witness gives evidence that he made the statement and that it is true (s.120(4)) and
The previous statement was a statement of identification (s.120(5))
Then it is admissible as:
Evidence of truth of matters stated; and
Evidence of consistency.

10

Re-examination on omissions

General Rule: re-examination should be confined to matters arising in cross-examination.

Counsel must obtain the leave of the judge to examine Simon on the evidence omitted in examination in chief.

11

Previous complaint

If:
W gives evidence that he made the statement and that it states the truth (s.120(4))
And
W is the victim of the offence (s.120(7)(a) and (b))
W has made a complaint about offence (s.120(7)(c))
not elicited by threat or promise (s.120(7)(e))
W gives evidence before the statement is adduced (s.120(7)(f))
Then the complain is admissible as:
Evidence of the truth of matters stated; and
Evidence of consistency.

12

(vi) and (vii) : Statements by the accused


If self-serving statement (wholly exculpatory):
Generally not admitted as evidence of truth of the facts stated, but admitted as relevant evidence of the reaction of the accused when first taxed with incriminating facts.
 
If adverse to the accused (wholly inculpatory):
May be admitted as evidence of truth of the facts stated under PACE 1984 s76

If mixed statement (partly inculpatory, partly exculpatory):
Both parts of the statement admitted as evidence of truth of the facts stated

13

Hostile Witnesses

Apply to treat Paul as a hostile witness
Unfavourable or hostile?
Section 139 CJA 2003?
If hostile, on what should counsel cross-examine?

Judicial direction
Accept Paul’s police statement, if sure that it was true and accurate.
Accept Paul’s evidence at trial, if sure that he or she was telling the truth; or
Ignore both witness statement and evidence.

14

MCQ1

Which of the following statements is CORRECT?
In examination in chief, the general rule is that:

A) A witness must be asked leading questions
B) A witness must be asked questions framed in such a way as not to suggest the answer sought or to assume the existence of disputed facts yet to be adduced.
C) A witness must not give evidence of facts that they personally perceived.
D) Evidence elicited by leading questions is inadmissible.

ANSWER: B
In XIC the general rule is that a witness must not be asked a question that contains or suggests the answer or which assumes the existence of disputed facts yet to be established. Subject to very limited exceptions, non-leading questions should be used in evidence in chief. The rationale for this rule is that a witness must only give evidence of what he or she personally perceived. Where evidence is elicited through a leading question, it is not inadmissible but the weight attached to it may be substantially reduced (Moor v Moor [1954] 1 WLR 927).

15

MCQ 2

Which of the following statements is CORRECT?
Under s139 of the Criminal Justice Act 2003, during evidence in chief a witness may refresh their memory from a written account made or verified by him at an earlier time if he gives evidence that the document records his recollection at that earlier time and that

A) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
B) that he wishes to have an opportunity to read the statement before continuing to give evidence.
C) that he cannot recall the detail of the events because of the lapse of time since they took place.
D) that he did not read that document before coming into court.

ANSWER: A
See wording of s139 CJA 2003. Answers B, C and D are taken from the common law criteria required for a judge to exercise his discretion to allow a witness to refresh their memory.

16

What is the purpose of cross-examination?


Concerning a party’s questioning of his/her opponent’s witness, what type of questions should be asked?

What is an inconsistent statement?

To elicit evidence supporting the cross-examining party’s version of the facts in issue,
To weaken or cast doubt on the accuracy of the evidence given by the witness in their evidence in chief, and,
If appropriate, to impeach the witness’s credibility. BCP F7.4


A witness under cross-examination should be asked leading questions. BCP F7.12


An inconsistent statement is an oral or written statement made by the witness that is at odds with the account given by that witness in his testimony. A witness may be XX’ed on any inconsistencies.

17

By reference to the Criminal Procedure Act 1865, what is the procedure for proving a witness’s prior inconsistent statement?


See ss4 and 5 Criminal Procedure Act 1865. S4 applies to written and oral statements, s5 to written statements only.
If the witness in XX admits that he made that statement, no further proof is necessary. If not, the statement may be proved.
See Qu1 for more detail.

18

Again by reference to the Criminal Procedure Act 1865, what is the procedure for putting to a witness, a previous statement he has made in writing?

See CPA 1865, s5
s5 CPA 1865 permits XX about a previous statement contained in a document without that document first being shown to the witness if counsel does not intend to contradict him. NB counsel must have the document with him as the judge may require the document to be produced for inspection.

If counsel wishes to contradict the witness, the witness must be directed to the relevant part of the document and asked to read that part of the document silently to himself before further questions may be asked. Should counsel choose to put the document into evidence by reading relevant sections aloud, the tribunal of fact may inspect the document in its entirety.
BCP F7.48-49

19

What is the effect of the failure by an advocate to put his/her case during cross-examination?


What is the rule concerning the admissibility of a wholly exculpatory statement, made on accusation?


Failure to XX on a particular matter is taken as tacit acceptance of that matter. Wood Green Crown Court, ex pate Taylor [1995] Crim LR 879.

Where a fact is not put to a witness, it cannot be relied on in a closing speech. Bircham [1972] Crim LR 430. BCP F7.8


The statement is admissible at trial as evidence of the accused’s reaction when first taxed with the allegation.
The statement is not admissible as evidence of the facts stated. (Storey (1968) 52 Cr App R 334, Pearce (1979) 69 Cr App R 365) BCP 2015, BCP F6.36

20

What principles apply to the issue of the giving of a care warning?

Requirement to give a care warning abrogated. S 32 CJPOA 1994.
Where the tribunal of fact is asked to act on the unsupported evidence of 'suspect witnesses', the judge has a discretion to warn the jury to exercise care before acting on that witness’s evidence. BCP F5.5-9
Makanjuola [1995] 2 Cr App R 469.
Judge has a discretion as to what, if any, warning is appropriate.
The need for a care warning will depend on the circumstances of the case, the issues raised and the content and quality of the witnesses' evidence.
There must be some evidential basis for suggesting that the witness is unreliable.
There is no set form of words for a care warning.

21

What is the rule of finality and what are the exceptions to the rule?

Under the rule of finality, a witness’s answer to a collateral matter is final, unless it comes within one of the recognised exceptions. The cross-examining party cannot call any further evidence to prove the contrary.
The recognised exceptions are: a) previous convictions, b) bias, c) reputation for untruthfulness and d) disability affecting reliability.
The test to determine whether a matter is collateral was set out in A-G v Hitchcock (1847) 1 Exch 91.
"The test whether a matter is collateral or not is this; if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence - if it has such a connection with the issues that you would be allowed to give it in evidence - then it is a matter on which you may contradict him."
Per Pollock CB
BCP F7.42

22

What are the statutory exceptions to the rule which prohibits cross-examination about the sexual behaviour of the complainant in a sexual case?

s.41(1) prohibits questioning about previous sexual behaviour unless leave granted
s.41(2) leave may be granted if either s.41(3) or (5) are satisfied and if refusal of leave may create risk of unsafe conclusion by judge or jury
s.41(3)(a) issue is not consent
s.41(3)(b) issue is consent but previous sexual behaviour is at or about same time as offence charged
s.41(3)(c) issue is consent but behaviour is so similar, the similarity cannot be explained by coincidence
s.41(5) defence may rebut evidence of sexual behaviour adduced by prosecution
e.g. False denial by complainant that s/he never had sex outside a stable relationship

23

Explain with reasons, whether a defendant charged with a sexual offence may personally cross-examine a complainant?

As a general rule, an accused is entitled to cross-examine in person any witness called by the prosecution.
This rule is subject exceptions.
s34 YJCEA 1999, no person charged with a sexual offence may cross-examine in person the complainant, either in connection with the offence or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings. BCP F7.2

24

How is the statutory rule prohibiting cross-examination of a complainant’s sexual behaviour qualified by the case of R v A [2001] 3 All ER 1, HL?

R v A (No.2) [2002] 1 AC 45, HL moderates an overly restrictive application of s.41(3)(a)-(c), and in particular (c).
Held that the operation of s41 and in particular s.41(3)(c) was, by virtue of s3 of HRA 1998, subject to the implied provision that questioning or evidence required to ensure a fair trial could not be inadmissible.
The test for determining the admissibility of evidence of a previous sexual relationship is, regardless of s.41, is whether the evidence or questioning is so relevant to the issue of consent that to exclude it would endanger the fairness of the trial. BCP F7.37

25

Question 1(i)XX on matters not mentioned in statement

Show the witness his/her statement;
Ask the witness to confirm it is his/her statement;
Ask the witness to confirm it was made when events were fresh in his/her mind;
Ask the witness to confirm that s/he had an opportunity to read over it and add in anything s/he had left out or take out/correct anything that was inaccurate;
Put failure to mention in statement suggestive comments and attempted kiss
Suggest mistake / embellishment

26

Section 4 CPA1865

“If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”

27

s5 CPA 1865

“A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.”

28

Q1(ii)- failing to put a matter to the witness in XX

Not permitted to mention the matter in closing speech as witness has not been given opportunity to address it (R v Bircham [1972] Crim LR 430 & Code of Conduct rC7.2);

Could apply to judge to exercise discretion to permit the witness to be recalled so that the matter could be put (Wilson [1977] Crim LR 553).

29

Q 1 (iii)- Care warnings

S 32 CJPOA 1994 abrogates the requirement to give a care warning.

R v Makanjoula [1995] 2 Cr App R 469- the judge has a discretion as to what warning, if any, is appropriate. Before a judge will give a warning, there must be an evidential basis for suggesting the witness is unreliable.

30

Q 1 (iv/v)- Self serving statement on accusation

Mixed statement- admissible for truth of what is asserted in the statement;

Purely ‘exculpatory’ statement- not admissible for truth; it is admissible as evidence of reaction to arrest.

Where a mixed statement is admitted, cross-examine on the basis that it was self-serving.

See Pearce (1979) 69 Cr App R 365

31

Q 2 Key Points

2(a) The attempt to hit Cerys is relevant to defence of self-defence. If denied, evidence may be called to rebut denial as issue of the attempt to hit is not collateral.

2(b) Credibility is a collateral issue and rule of finality would prevent further XX if Mart denies he can speak better English.

2(c) Issue of credibility is collateral but bias is an exception to the rule of finality.

2(d) Mental illness is also an exception to the rule of finality if the illness effects the witness’s reliability.

32

Q3 – Key Points

(i) issue not consent, it is false allegation. s41 restrictions may not apply.

(ii) issue not consent, it is belief in consent. (s.41(3)(a) YJCEA 1999).

(iii) issue is consent, but previous behaviour not sufficiently recent (s.41(3)(b) YJCEA 1999)

(iv) issue is consent, and main purpose to impugn credibility (s.41(4) YJCEA 1999)

(v) issue is consent, but previous behaviour takes place around same time (s.41(3)(c) YJCEA 1999)

(vi) issue is consent, but previous behaviour strikingly similar (s.41(3)(c) YJCEA1999)

(vii) issue is consent, and inadmissible under s.41 YJCEA 1999
However, may be admissible applying principles of fairness and relevance
R v A (No.2) [2002] 1 AC 45

33

Q4 - Key Points

Evidence may be adduced to rebut prosecution evidence about complainant’s sexual history (s.41(5) YJCEA 1999)

Prosecution evidence may need to be sufficiently misleading as to require rebuttal
R v Winter [2008] Crim LR 971, CA

Kirsty’s evidence is a strong ‘false denial’ which may permit rebuttal by putting and adducing evidence of Zeeshan.

Silvio is debarred from cross-examining Kirsty in person. YJCEA 1999, s34.

34

Tim and Alby are charged with raping Mary, a child aged 5 with learning difficulties. Tim is named first on the indictment and Alby is named second. At the trial in the Crown Court, the judge rules as a preliminary issue that Mary is competent to give evidence. During the trial, Mary’s mother, Suzie, gives evidence-in-chief and is then cross-examined by both Tim and Alby’s advocate. During the cross-examination of Mary by Tim’s advocate, the judge intervenes to restrain some of the questioning. When it comes to the point in the trial where Tim and Alby are due to present their defences, it becomes apparent that they are going to run ‘cut throat’ defences.

a) What test will have been applied by the judge when determining Mary’s competence, and what burden and standard will have applied?
[2 marks]


a) The test applied will be whether Mary can understand questions put and give answers which can be understood [1 mark]. The burden is on the party calling the witness whose competence is in issue and the standard is the balance of probabilities [1 mark]. Total 2 marks.

35

b) What special measures will Mary receive and on what basis will she receive them?
[2 marks]

b) Mary is automatically entitled to the special measures of video recorded examination-in-chief and cross-examination by live link [1 mark] and she will receive them on the basis that she is a child witness and this is the primary rule in respect of child witnesses [1 mark]. Total 2 marks.

36


c) If Mary was 15 and did not have learning difficulties, was confident about her evidence, was conscientious about the importance of giving truthful evidence and wished to give it in person, on what grounds might this be possible? Would Mary, aged 15, be able to give her evidence be sworn? Explain your answer.
[4 marks]

c) The primary rule is that her evidence-in-chief should be by video recording and she should be cross-examined by live link because she is a child witness (the primary rule) [1 mark]. However, the primary rule may be disapplied [1 mark]. It may be disapplied if Mary informs the court that she wishes the rule not to be applied or to be applied only in part [1 mark] and the court is satisfied that complying with the rule would not diminish the quality of her evidence [1 mark]. Additionally, the rule does not apply to the extent that the court is satisfied that it would not maximise the quality of Mary’s evidence [1 mark]. Mary would be able to give her evidence sworn because she has attained the age of 14 and has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth [1 mark]. Total 4 marks.


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d) On what basis is the judge likely to have intervened to restrain cross-examination of Suzie by Tim’s advocate?
[1 mark]

d) The judge is likely to have intervened on the basis that the cross-examination was long-winded and/or repetitive [1 mark]. The judge may do this under the general duty of court to deal with cases efficiently and expeditiously and manage cases actively to ensure evidence is presented in the shortest and clearest way possible [1 mark]. Total 1 mark.

38

e) What will be the sequence of cross-examination when Tim and Alby begin to present their defences?
[1 mark]

e) The sequence of cross-examination will be that Tim will give evidence first. He may then be cross-examined by Alby’s advocate and then be the prosecution. Alby will then give evidence and may be cross-examined first by Tim’s advocate and then by the prosecution [1 mark]. Total 1 mark.

39

You are defending Damian in the Crown Court, who is charged with robbing Celia of her iPhone. Celia gave a description of her attacker to the police and Damian, who matched the description, was subsequently arrested and later identified by Celia at an identification procedure. Celia has given evidence-in-chief for the prosecution and you are about to cross-examine her.

a) What is the purpose of cross-examination?
[2 marks]

a) To elicit evidence favourable to the cross-examining party's case [1 mark]. To qualify, weaken or undermine the evidence unfavourable to the cross-examining party's case [1 mark]. Total 2 marks.



40

Celia’s evidence is contradictory. In particular, during evidence-in-chief, she described being punched on the cheek and threatened with further violence by her attacker but her witness statement records only that her attacker shoved her shoulder.

b) If you wish to contradict Celia using her previous inconsistent statement, what procedure must be followed to prove the statement and to put it to her?
[2 marks]

b) When, upon being asked whether she made the inconsistent statement, the witness admits making it [1 mark] or where she denies making the inconsistent statement having been asked whether she made it, the statement is then proved [1 mark]. The part of the witness statement that you wish to use to contradict her with must be drawn to her attention (s 4, and 5 CPA 1865) [1 mark]. Total 2 marks.

41

c) If Celia’s previous statement is adduced, what will be its evidential value?
[1 mark]

c) It may be admitted as evidence of the truth of its contents (s119 CJA 2003) [1 mark]; and it may be evidence affecting the witness’s credibility [1 mark]. Total 1 mark.

42

d) If during cross-examination you fail to challenge part of Celia’s testimony, what is the effect on the defence case in relation to that part of her testimony?
[1 mark]

d) That part of Celia’s testimony which has not been challenged, is deemed to have been accepted [1 mark]. Total 1 mark.

43

At the conclusion of the defence case, the Judge gives a summing-up to the jury.

e) On what basis could a Judge give a care warning in respect of Celia’s evidence?
[1 mark]

e) It is a matter of judicial discretion as to whether to give a care warning in respect of a witness but there must be an evidential basis for suggesting that Celia is ‘suspect’ witness (Makanjuola [1995] 1 WLR 1348) [1 mark]. Here there is an evidential basis for arguing that Celia has embellished her evidence (punch and threats) and it may be unreliable/should be treated with care/may be unreliable [1 mark]. Total 1 mark.

44


f) What principles apply to judicial directions to a jury in relation to the evidence of a witness regarded as ‘suspect’?
[3 marks]


f) It is a matter for the judge’s discretion as to what, if any, warning he considers appropriate to give [1 mark]. If a warning is given, it may be appropriate for the judge to warn the jury to exercise some caution before acting upon the unsupported evidence of an unreliable witness [1 mark]. If a warning is required, the strength and terms of the warning are to be decided by the judge [1 mark]. The judge ought to draw the jury’s attention to any supporting material and any evidence which the jury might think is capable of being supportive but which, in law, is not so capable [1 mark]. Total 3 marks.

45

Restrictions on cross-examination:
questioning about sexual behaviour under YJCEA 1999, s 41


1. First ask yourself if the questioning is about the complainant’s sexual behaviour.




If the subject matter sought in the questioning is on the borderline of sexual behaviour, a ruling should be sought from the judge as to whether it is questioning about sexual behaviour within the meaning of the s 42(1)(c).

If the questioning isn’t about sexual behaviour, then it will be allowed if it is relevant. If what you are seeking to question the complainant about could qualify as ‘bad character evidence’ (for example, she has made a false allegation), then CJA 2003, s100 applies. If s 100 applies, the evidence will be admissible if all parties agree, or it is important explanatory evidence, or it has substantial probative value in relation to a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole. Unless there is agreement, leave is required.

46

2. If the questioning is about sexual behaviour then, by virtue of s 41(1) and 41(2), it will only be allowed if leave is granted.

Leave will only be granted if s 41(3) or (5) applies (see s 41(2)(a)) and refusal of might cause the jury to come to an unsafe conclusion on a relevant issue in the case (see s 41(2)(b)). Note also that under s.41(6), questioning must be about a specific instance of sexual behaviour and, additionally, leave will not be granted if the main purpose is to impugn the complainant’s credibility (see s 41(4)).
__________________________

47

3. If the questioning is about sexual behaviour, ask yourself what the issue is.



If the issue is an issue other than consent, then s 41(3)(a) applies and leave may be granted if the refusal of leave might cause the jury to come to an unsafe conclusion on a relevant issue in the case (see s 41(2)(b)).
_________________________

48

4. If the issue is consent, ask yourself whether the sexual behaviour happened at or about the same time as the event which is the subject matter of the charge. This will be no more than 24 hours according to R v A (No2) (although the Explanatory Notes to the provision envisaged 12 hours).


If the behaviour did happen at or about the same time as the event which is the subject matter of the charge , s 41(3)(b) applies and leave may be granted if the refusal of leave might lead to an unsafe conclusion by the jury etc. (see s 41(2)(b)).

49

5. If the issue is consent and the behaviour didn’t happen around the same time as the event which is the subject matter of the charge, ask yourself if there is a similarity between the behaviour and the facts of the alleged offence which can’t be explained by coincidence.

If there is this similarity, then s 41(3)(c)(i) applies and leave may be granted if the refusal of leave might render unsafe a conclusion of the jury/court etc.(s 41(2)(b)).

If there is no similarity between the behaviour and the event which is the subject matter of the charge, ask yourself whether there is a similarity between the behaviour and other sexual behaviour which took place at or about the same time as event which is the subject matter of the charge. If there is and it can’t be explained by coincidence, then s 41(3)(c)(ii) applies and leave may be granted if refusal would lead to an unsafe conclusion by the jury etc.

50

6. If none of the above fit, ask yourself whether there has been prosecution evidence about the complainant’s sexual history which you wish to rebut by questioning the complainant about his/her sexual behaviour.

If so, s 41(5) applies and you will get leave if the refusal of leave would lead to an unsafe conclusion of the court/jury etc (s 41(2)(b). However, the questioning should go no further than is necessary to rebut or explain the prosecution evidence.

51


7. If none of the above fit, ask yourself whether it is one of those rare cases where although on a strict interpretation s. 41 prohibits the questioning on sexual behaviour, the principle in R v A (No. 2) applies. This authority recognised that there might be cases where relevant evidence should be admitted to uphold D’s’ right to a fair trial under Article 6 ECHR.

Judges should therefore have regard to ordinary principles of relevance and fairness and be prepared to admit evidence which might not otherwise satisfy the conditions for admissibility under s 41 where it was necessary to protect a defendant from unfairness. Evidence of a recent affectionate relationship of which consensual sex was a part, could be relevant to show the complainant’s affection for D. However, isolated acts without a background of affection are unlikely to be relevant. Similarly, evidence of complainant’s behaviour with persons apart from D is unlikely to be relevant to consent.

52

8. Finally, be aware of the procedure to be followed. Crim PR 2015, Part 22 requires an application to be made in writing not more than 28 days from the date of disclosure by the prosecution under the Criminal Procedure and Investigations Act 1996, s 3.

The application must be served on the court officer and all other parties. A party who wants to make representations in reply to an application must do so in writing within 14 days of receiving the application and serve the representations on the officer of the court and all other parties.

53

1.

In a case where the prosecution will be represented by the Crown Prosecution Service, which one of the following is NOT available as a means of commencing proceedings?

[A] Arrest pursuant to a warrant granted by a magistrate.
[B] Arrest by a police officer without a warrant.
[C] The laying of an information, followed by the issue of a summons.
[D] The issuing of a written charge and requisition.

-

54


2.

Which one of the following statements, about the power of the police to delay access to legal advice by someone who is being held without charge for questioning, is CORRECT?

[A] The delay must be authorised by an officer of the rank of Inspector or above.
[B] The power to delay access to legal advice applies to all offences.
[C] The power to delay access to legal advice may be exercised only if there is a real and present danger of personal injury to someone.
[D] The concern must relate to the particular solicitor the suspect wants to seek advice from.

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55

3.

Susie is charged with burglary, which is triable either way. Which ONE of the following statements is correct?

[A] She must be tried in a magistrates’ court.
[B] She must be tried in the Crown Court.
[C] She may be tried in the magistrates’ Court only if she and the magistrates agree to trial in the magistrates’ court.
[D] She may be tried in the Crown Court only if she and the magistrates agree to trial in the Crown Court.


-

56

4.

Which one of the following CANNOT usually be regarded as correct in the context of a defendant choosing whether to consent to summary trial or to elect Crown Court trial?

[A] Summary trial is likely to be shorter and less formal than trial on indictment.
[B] There is a limit of 6 months for a single either-way offence, or a total of 12 months where the defendant is being dealt with for two or more either-way offences, on the sentence that can be imposed if the defendant is found guilty.
[C] The acquittal rate is higher in the Crown Court.
[D] Crown Court trial may be more appropriate where the case involves points of law, especially where those points relate to admissibility of evidence.

--

57

5.

In which ONE of the following (separate) instances does the accused have a right to elect trial in the Crown Court?

[A] The accused is charged with breaking a window at 47 Acacia Avenue; the cost of repair is £750.
[B] He is charged with breaking a window at 47 Acacia Avenue (the cost of repair is £750) and, two minutes later, a window at 49 Acacia Avenue (the cost of repair is a further £750).
[C] He is charged with vandalising a Mercedes motor car, cost of repair £4,800.
[D] He is charged with shoplifting in a case where the goods are worth £50.

-

58

6.

Albert and Bruce are charged jointly with burglary. At the mode of trial hearing, the magistrates accept jurisdiction, Albert the consents to summary trial. However, when Bruce is asked where he wants to be tried, he elects Crown Court trial. Which one of the following statements is correct?

[A] Because of the choices they have made, Albert will be tried in a magistrates’ court and Bruce will be tried in the Crown Court.
[B] In light of Bruce’s election of Crown Court trial, the magistrates must revisit the allocation of Albert’s trial and they must send him to the Crown Court for trial.
[C] If Bruce had elected Crown Court trial before Albert consented to summary trial, the magistrates would have been required to send Albert to the Crown Court for trial even if he would have consented to summary trial, but because Albert had already consented to summary trial it is too late for that decision to be changed when Bruce subsequently elects Crown Court trial.
[D] Burglary is triable only on indictment and so the magistrates erred in holding a mode of trial hearing.

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7.

Patricia is charged with theft. The case has been listed for the plea before venue/mode of trial hearing to take place. Patricia, who is on bail, fails to attend. Patricia had telephoned her solicitor to say that she didn’t feel well and so wasn’t going to attend, but she gave no details of her illness and there is no medical evidence before the court. Which ONE of the following options is NOT open to the magistrates’ court?

[A] Adjourn and issue a bench warrant, not backed for bail, for her arrest.
[B] Adjourn and issue a bench warrant, backed for bail, her arrest.
[C] Adjourn and have a warning letter sent to her.
[D] Try her in her absence.

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8.

Which one of the following best describes the test applied by a magistrates’ court when a submission of no case to answer is made after the close of the prosecution case in a summary trial?

[A] The submission should succeed if the prosecution evidence is insufficient for any reasonable court properly to convict.
[B] The submission should succeed only if the prosecution amounts to an abuse of process.
[C] The submission should succeed if the magistrates are not, at that stage of the trial, satisfied so they are sure of the defendant’s guilt.
[D] The submission should succeed only if the magistrates are satisfied that the defendant is innocent.

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9.

Which one of the following describes most accurately what happens after the defence evidence has been presented in a trial in a magistrates’ court?

[A] The defence are always entitled to make a closing speech but the prosecution are never permitted to make a closing speech.
[B] The prosecution may make a closing speech provided that the defendant is legally represented or has introduced evidence other than his own, and any such speech must precede any defence closing speech.
[C] Both the defence and the prosecution are always permitted to make a closing speech.
[D] Where the prosecution make a closing speech, this must be done after the defence have made their closing speech

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10.

Which one of the following statements about the role of a magistrates’ court legal adviser is NOT correct?

[A] He or she may assist the court by giving legal advice.
[B] He or she may assist the court in reaching finds of fact.
[C] He or she may assist the court in the formulation and recording of its reasons.
[D] He or she may assist an unrepresented defendant.

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