Criminal Law Week
a comprehensive and concise digest of developments in the criminal law
CONTINUING PROFESSIONAL DEVELOPMENT
Distance Learning Course for Barristers 2015
Question and Answer Sheet - Paper No. 2
Questions based on Issues 4, 5 and 6 of 2015
CONTINUING
PROFESSIONAL
DEVELOPMENT
Each set of 12 questions is usually based on the previous three issues of Criminal Law Week.
These questions are found on the inside pages of this document. The answer sheet is to be
found on the back page. Please complete the answer sheet by placing a cross in the relevant
box corresponding to the question numbers. The answer sheet must then be forwarded to the
CLW CPD Department to arrive no later than the date shown.
Registrants answering at least eight questions correctly will be awarded one CPD hour.
If you have any queries please contact
the CPD helpline on 020 7542 9797
All rights reserved. No part of this publication may be held in a retrieval system in any form, or reproduced by any
means, without the written prior agreement of the publisher. Unauthorised copying will be restrained by legal action and
may be a criminal offence. Criminal Law Week is a trade name of Thomson Reuters (Professional) UK Limited. ISSN
1368-5589. Typeset and printed by Wyeth Print Group Limited (01420 544 948). Thomson Reuters and the Thomson
Reuters Logo are trademarks of Thomson Reuters. Sweet & Maxwell ® is a registered trademark of Thomson Reuters
(Professional) UK Limited.
© 2015 Thomson Reuters (Professional) UK Limited
C.P.D.
Questions based on
Issues 4, 5 and 6 of 2015
ISSUE 4
Miscellaneous/ New legislation
1.
Which of the following statements is incorrect?
(A)
In R. (Henderson) v. Crown Court at Kingston upon Thames and
Secretary of State for Justice, it was held that section 16A of the
Prosecution of Offences Act 1985 (legal costs) was not incompatible with a
Convention right within the meaning of the Human Rights Act 1998, nor
with the Bill of Rights 1688.
(B)
It was further held that although this did not apply in relation to
section 16A in its original format (a defendant’s costs order under s.16
could not include any amount in respect of legal costs for a trial in the
Crown Court), it was the case in relation to it as amended by the Costs in
Criminal Cases (Legal Costs) (Exceptions) Regulations 2014 (legal costs
may be included but limited to legal aid rates).
(C)
The commentary submits that, a direct challenge to the decision
of the Crown Court no longer having been pursued, that should have been
the end of the matter, since section 4 of the 1998 Act does not confer power
to grant a declaration of incompatibility independently of subsisting legal
proceedings.
(D)
The Offender Rehabilitation Act 2014 (Commencement No. 2)
Order 2015 brings the Act into force on February 1, 2015, so far as it is not
already in force (except to the extent that s.18(5) and (8) insert paras 16(3)
of Sched. 8, and 14(3) of Schedule 12, to the CJA 2003).
ISSUE 5
Sentence
2.
Which of the following statements, based on the digest of
Hutchinson v. U.K., is incorrect?
(A)
Contracting states must remain free to impose life sentences on
adult offenders for especially serious crimes, and the imposition of such a
sentence is not in itself prohibited by, or incompatible with, Article 3 of the
ECHR, this being particularly so when such a sentence is not mandatory
but imposed by an independent judge after consideration of all relevant
factors, but if a life sentence is as a matter of law or practice irreducible,
this may raise an issue under Article 3.
(B)
In the context of a dispute as to whether the Secretary of State’s
discretion under the C(S)A 1997, s.30, to release a prisoner serving a
whole-life term was sufficient to make a whole-life sentence legally and
effectively reducible, it was primarily for the national authorities, notably
the courts, to resolve problems of interpretation of domestic legislation.
(C)
Where, following the judgment of the Grand Chamber in Vinter
v. U.K., in which it expressed doubts about the clarity of domestic law, the
Court of Appeal had specifically addressed those doubts and set out an
unequivocal statement of the legal position, although the court was not in
any way bound to accept the national court’s interpretation of domestic
law, it was able to do so in this case.
(D)
Further, the power to release under section 30, if exercised in the
manner suggested in R. v. Bieber and R. v. Oakes (and others), and now in
R. v. McLoughlin; R. v. Newell, will ensure compatibility of a whole-life
sentence with the requirements of Article 3.
Miscellaneous
3.
Which of the following statements, based on the digest of, and
commentary on, R. v. Furniss and others, is incorrect?
(A)
Having regard to the terms of the advocates’ graduated fee
scheme under the Criminal Defence Service (Funding) Order 2007 and the
requirements of Article 6 of the ECHR, where cell site, telephone, and
similar material is served by the prosecution upon the defence in digital
form, it must be included as pages of prosecution evidence for graduated
fee purposes, and payment made to defence advocates on that basis.
(B)
Whereas the graduated fee scheme provides for a maximum
page count of 10,000 pages, this imposed an artificial cap on advocates’
remuneration irrespective of the work actually done, and whether the actual
page count was marginally above 10,000 pages or vastly exceeded that
amount, such a restriction was manifestly disproportionate and could not
rationally have been intended to apply.
(C)
The commentary notes that any claim the judgment may have to
authoritative status is somewhat diminished by the fact that it refers to the
2007 order as the relevant legislation, when in fact the Criminal Legal Aid
(Remuneration) Regulations 2013 were the governing regulations.
(D)
It also submits that, unfortunately for advocates, the victory here
is likely to be pyrrhic, that it is inconceivable that the Lord Chancellor will
take this judgment lying down, and that there were certain particular
observations of the judge that are guaranteed to engage the Lord
Chancellor’s attention, including that costs judges should consider
awarding costs against the Legal Aid Agency on an indemnity basis in the
event that advocates had to bring further appeals.
ISSUE 6
Evidence and procedure
4.
Which of the following statements, based on the digest of, and
commentary on, DPP v. Petrie, is incorrect?
(A)
Where the defendant was charged with driving with excess
alcohol and where it was common ground that CCTV footage from the
police station was required for the trial, the justices had been quite entitled
to refuse a prosecution application for an adjournment when, on the day of
trial, the CCTV footage supplied by the prosecution had not been suitably
formatted and could not be played.
(B)
Although there are instances where the interests of justice
require the grant of an adjournment, this should be a course of last rather
than first resort, it is essential that parties to proceedings in magistrates’
courts should proceed on the need to get matters right first time, and any
suggestion of a culture that readily permits an opportunity to correct
failures of preparation should be firmly dispelled.
(C)
The justices had also been entitled then to grant a defence
application for a stay on grounds of abuse where the prosecution were able
to proceed, since the prosecution had been wholly at fault, and since there
was no reasonable way the trial process could safely and fairly have dealt
with the “hole” in the case arising from the prosecution failure.
(D)
The commentary suggests that defence practitioners will take
with a pinch of salt what the court said about the need to dispel any
suggestion of a culture that readily permits an opportunity to correct
failures of preparation, and that there are numerous examples of the court
indulging prosecution failures, with the comment repeatedly being made
that such indulgence merely encourages such a culture.
5.
It was held in R. v. Rafik that: (i) where the defendant, having
declined to give evidence, sought to have his police interviews played in
full to the jury, the judge was well within his case management powers in
the Criminal Procedure Rules 2014 in reducing the number of interviews
to be played to the jury and in requiring the remainder to be summarised,
and the defendant had no entitlement to place before the court the entirety
of his interviews so as to gain the advantage of giving an oral account to
the jury without having that account subjected to cross-examination; and
(ii) where it was said that a significant reason for the defendant not giving
evidence was that it would have implicated his co-accused and that he was
fearful of the consequences, the judge should not have given the jury a
direction under section 35 of the CJPOA 1994 that they might infer that the
reason for not giving evidence was that the defendant could not give a
proper account, or at least not one that would withstand cross-examination,
as there was a clear and cogent evidential basis for not so inferring.
(A)
(i) is correct; (ii) is incorrect.
(B)
(i) is incorrect; (ii) is correct.
(C)
Both are correct.
(D)
Both are incorrect.
6.
Which of the following statements, based on the digest of R.
(Wang Yam) v. Central Criminal Court, is incorrect?
(A)
A direction under section 11 of the Contempt of Court Act 1981
imposing reporting restrictions was not a matter “relating to trial on
indictment” within section 29(3) of the Senior Courts Act 1981 when given
after the conclusion of a criminal trial.
(B)
Where the defendant, following conviction and unsuccessful
appeal, applied to the judge to vary an order restricting reporting of
sensitive information for the purposes of an application to the ECtHR
alleging that the restriction breached his right to a fair trial (Art. 6 of the
ECHR), and where the judge refused the application, the refusal did not
breach the defendant’s right of access to the courts, nor did it place the
U.K. in breach of its international law obligations.
(C)
It must be open to a domestic court in an appropriate case to
conclude that the public interest, such as ensuring national security and
possibly the right to life, would be so undermined by making confidential
material available to third parties that the court should order that there
should be no communication of such material.
(D)
However, “publication” (in s.11) has the same meaning as for
contempts involving an interference with the course of justice, viz. some
form of communication addressed to, at the least, any section of the public,
and, in the context of an application to the ECtHR, that court’s staff and
judges could not be considered to be a “section of the public”, and so an
order under section 11 would not restrict disclosures to them.
7.
In SFO v. Evans and others, it was held that: (i) an application
for a voluntary bill following the dismissal of a charge under paragraph 2
of Schedule 3 to the CDA 1998 should only be granted where (a) the
Crown Court made a basic and substantive error of law that is clear and
obvious, (b) new evidence has become available that the prosecution could
not put before the court at the time of the dismissal hearing, (c) there was a
serious procedural irregularity, or (d) there were other exceptional
circumstances, which might include correction of a prosecution mistake or
a change of mind by the prosecution; and (ii) where, here, the prosecution
had reformulated their case twice prior to the dismissal ruling (the second
time at a reconvened hearing when the judge raised a matter of law after
the conclusion of the initial hearing), and where they advanced a fourth
possible basis for the charges at the application for the voluntary bill, the
application would be allowed, since it was not in the interests of justice for
the defendants to benefit merely because the prosecution had initially failed
to approach the case with sufficient analytical precision.
(A)
(i) is correct; (ii) is incorrect.
(B)
(i) is incorrect; (ii) is correct.
(C)
Both are correct.
(D)
Both are incorrect.
Sentence
8.
Which of the following statements is incorrect?
(A)
It was held in R. v. Lewis, where the police found multiple
firearms in working order in the appellant’s home, that the case could not
be distinguished from Att.-Gen.’s Reference (No. 57 of 2009) (R. v.
Ralphs), where it was held that where weapons and ammunition are found
in the same property at the same time, with no evidence to suggest that they
had come into offender’s possession on different occasions, it was
illegitimate to circumvent the statutory maximum by imposing consecutive
sentences where, on ordinary sentencing principles, concurrent sentences
should be imposed.
(B)
The commentary submits that it is now beyond doubt that the
courts are bound by Ralphs, and that trying to circumvent it by, e.g.,
charging the offender with an offence under section 16 of the Firearms Act
1968, viz. possession of a firearm and ammunition with intent by means
thereof to endanger life or to enable another by means thereof to endanger
life, would be inappropriate.
(C)
It was held in R. v. Heggarty, where the appellant had committed
a murder for gain with the aggravating features that he had attempted to
destroy the body and had very serious previous convictions, and where
there was no mitigation, that the judge’s approach in regarding a 30-year
starting point as inadequate and in concluding that the Secretary of State
would (under the pre-CJA 2003 practice) have recommended a whole-life
order was appropriate.
(D)
It was further held that it was a “struggle to see why this was in
any way unreasonable”, and that the judge was clearly entitled to impose a
whole-life order, the court noting that the appellant had previous
convictions which established him as particularly violent.
9.
Which of the following statements, based on the digest of, and
commentary on, R. v. Roper, is incorrect?
(A)
Where the appellant had allowed his co-defendant to deposit
cheques obtained fraudulently from an insurance company and payable to
the appellant into a bank account in his name, at the moment the cheques
cleared the appellant had a chose in action against the bank for the value of
the cheques, and he accordingly obtained property to that value for the
purposes of the confiscation legislation.
(B)
The evidence did not support the proposition that the appellant
was a mere nominee who had divested himself of all control over the
account, nor was the drafting of the counts binding as to who had control of
the proceeds of the cheques, and the appellant’s position was not the
equivalent of a courier.
(C)
The commentary notes that this was an unreserved judgment that
inspires little confidence and that makes no reference to Supreme Court
cases with obvious potential relevance, and submits that, as the facts of this
case illustrate, it is wholly disproportionate to make a confiscation order
against A merely because B’s dirty laundry passes through his hands.
(D)
It further submits that, having regard to the principle that
confiscation is not intended to operate as a fine, the just and proportionate
solution here was for no confiscation order to be made against the appellant
and for the entire amount to be included in the assessment of the benefit of
the principal, the appellant’s co-defendant.
10.
(i) In R. v. L., a sentence of detention for life imposed in 2006 on
the appellant who had pleaded guilty to three robberies, committed when
he was either 15- or 16-years-old, with a minimum term of 30 months, was
quashed where he was still in custody after over seven years, since while
the finding of dangerousness could not be faulted, the judge had not
recognised the special need for caution when considering whether an
indeterminate sentence should be imposed, a cautious approach being all
the more important where young offenders are being sentenced because
their personalities can change in a short period of time.
(ii) The
commentary notes that whilst the Court of Appeal may now proclaim that it
has previously emphasised the draconian nature of public protection
sentences, it came to the party very late in the day, that in the early years of
the operation of these sentences, it had no such qualms, and that, indeed, it
was the court’s repeated sanctioning of such sentences when there was no
justification for them that led to the rocketing number of prisoners (one of
whom would have been this appellant) serving indeterminate sentences.
(A)
(i) is correct; (ii) is incorrect.
(B)
(i) is incorrect; (ii) is correct.
(C)
Both are correct.
(D)
Both are incorrect.
11.
Which of the following statements is incorrect?
(A)
It was held in R. v. Thorsby; R. v. Glasson; R. v. Pilkington; R.
v. Robinson that where a defendant was entitled to a direction that one-half
of the time he had spent on bail subject to a qualifying curfew should count
towards a sentence of imprisonment, and the sentencing court failed to give
such direction, and where responsibility for the error and for any delay in
seeking leave to appeal against sentence lay with the court and the legal
representatives and not with him, an extension of time would be granted.
(B)
It was further held that even when a defendant, with knowledge
of the error, fails to act with due diligence, it is likely to be appropriate to
grant an extension of time, particularly given that in all well-founded cases
the prosecution will also have failed in their duty to the sentencing court.
(C)
It was held in R. v. D. that once the 56-day time limit in the
PCC(S)A 2000, s.155, has expired, any variation of substance to a sentence
will be of no effect.
(D)
It was further held that this covered the situation where the
sentencing judge had intended to impose an extended sentence of 19 years
on an offender who had been convicted of a series of offences, but had
expressed his sentences as a series of individual sentences of imprisonment
totalling 14 years and had then said that there would be an extension period
of five years without linking this to any one particular count (as he should
have done), and in those circumstances, it had not been open to him to reformat the sentence correctly after the expiry of 56 days.
Miscellaneous
12.
Which of the following statements, based on the digest of
Darroch et al. v. Hull and Holderness Magistrates’ Court, Media
Protection Services Ltd and Football Association Premier League Ltd
(Interested parties), is incorrect?
(A)
Where, following the quashing by the High Court of the
applicants’ convictions, they sought a “civil” third party costs order against
the second interested party (with whom the principal burden of
enforcement rested, but who engaged the first interested party (now in
liquidation) to investigate and prosecute) in respect of their costs in the
magistrates’ court, the case was exceptional, but that was not enough.
(B)
An order for the payment of costs by a non-party is always
exceptional, any application should be treated with caution, and a court had
to be alert to, inter alia, the possibility that an application for costs against
a non-party was motivated by resentment of an inability to obtain an
effective order against a legally aided (or otherwise impecunious) litigant.
(C)
In this case, there was no doubt that the reason for seeking the
order was the first interested party’s impecuniosity, and although the
second interested party stood to benefit financially from a successful
prosecution, a broader consideration did not suggest that a third party costs
order would be just in all the circumstances; these were criminal
proceedings with a public, as well as a private, interest.
(D)
It was observed obiter that whilst it was not necessary to
determine the jurisdictional question, given the decision in Murphy v.
Media Protection Services Ltd and the Practice Direction (Criminal
Proceedings: Costs), acceptance of the applicability of the civil costs
regime in this context would not have been regarded as wrong.
Criminal Law Week
a comprehensive and concise digest of developments in the criminal law
C.P.D. ANSWER SHEET PAPER NO. 2
Questions based on Issues 4, 5 and 6 of 2015
Name:
Chambers:
Registration number:
IMPORTANT: The return of this form shall be taken to constitute a representation
that the registrant has personally undertaken the work required for the purposes of
completing this CPD questionnaire.
ABCD
1 q q q q 2 q q q q
3 q q q q
4 q q q q
ABCD
9 q q q q
10 q q q q
11 q q q q
12 q q q q
5
6
7
8
Answers to Paper No. 1
1B 2D3C4C
5B 6A 7C8A
9B 10D11C12D
q
q
q
q
q
q
q
q
q
q
q
q
q
q
q
q
Return completed answer sheet to Criminal Law Week Ltd using one of the following
methods:
Post: Fax: Online: Criminal Law Week CPD Dept, Friars House, 160 Blackfriars Road, Southwark,
London, SE1 8EZ
CLW CPD Course Department on 0203 2857669
By logging in to My CPD (at http://www.criminal-law.co.uk under “CPD”
and “My CPD” in the horizontal tool bar).
ANSWERS SHOULD BE RETURNED BY: March 9, 2015
*586907*
We regret that answer sheets received subsequent to this date will not be marked.
Answers will be published with the next set of questions.