LEVEL 6 - UNIT 18 – CRIMINAL LITIGATION
SUGGESTED ANSWERS - JUNE 2015
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2015 examinations. The suggested answers set out a response that a
good (merit/distinction) candidate would have provided. The suggested answers
do not for all questions set out all the points which students may have included
in their responses to the questions. Students will have received credit, where
applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
Question 1
(a)
At present we only have third-party instructions from Emma Fox. It will be
necessary to obtain confirmation from Dariusz Koslowski that he wishes us
to act for him at this stage: SRA Code of Practice IB (1.25). Kempstons
can represent him as own solicitor under the advice at police stations
scheme, but the request for representation must be routed through the
Duty Solicitor Call Centre. Koslowski is entitled to consular assistance,
and, if necessary, an interpreter.
(b)
Koslowski has the usual three options – to answer all questions, to go no
comment or to make a written statement and go no comment. He needs
to be warned as to the danger of self-incrimination, and also of the danger
of inferences under s34 Criminal Justice and Public Order Act 1994
(CJPOA) if he goes no comment or fails to mention important matters in
his answers or statement. This will include both his explanation for the
presence of his DNA on the glove and details of his alibi and the witness in
support. We do not have clear information as to the full extent of police
disclosure, but there is nothing to suggest that they are withholding
significant information. However, Koslowski wishes to avoid implicating his
friend. This would lead to inferences if he fails to give a full account now
but later does implicate the friend. It will not do so if he only gives a
vague explanation about losing the gloves, but this may appear less
convincing.
Koslowski has some experience of being interviewed, and there is nothing
to suggest that he is unfit or otherwise unable to conduct himself properly
or there is a need for an interpreter. The decision is of course for him to
make, but there seems no reason to recommend a ‘no comment’
interview. The choice between the other options will depend on how
confident Koslowski is that he can handle the interview, in particular in
relation to the lost gloves.
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(c)
After the case has been sent to Crown Court the prosecution must give
primary disclosure (i.e. disclosure of material which forms their positive
case and material which undermines their case or assists the defence case
as then known): s.3 CPIA 96. The defence must then give disclosure by
way of a defence statement: s5 CPIA. This statement must include full
details in relation to the alibi. This entails a statement as to the nature of
the alibi, and why it makes it less likely or impossible that the defendant
committed the offence, and particulars of the witness.
The prosecution case will indicate a time window within which the offence
was committed. The evidence of Emma Fox covers the entire day, apart
from a short period. If the offence could feasibly have been committed
within that period, it may be necessary to obtain additional evidence (e.g.
from the shopkeeper). Full particulars of the name address and contact
details of the witness in support of the alibi must be provided.
Question 2
(a)
Paul Smith has a prima facie right to bail: s4 Bail Act 1976; Art 5 ECHR.
Bail can be withheld, as this is an imprisonable offence, on the grounds set
out in Part I of Schedule One to the Bail Act and taking account of the
factors set out in paragraph 9 of that schedule. Bail conditions may be
attached in order to deal with concerns in relation to the grounds: s 3 Bail
Act. Here, the primary concern is likely to be failure to surrender, given a
history of doing so, the unsatisfactory nature of Smith’s current address,
and his general lack of community ties. Furthermore, the offence is a
serious one, and the evidence is strong.
Although he has learning difficulties, it is unlikely that remand for his own
protection would be considered. Enquiries could be made as to whether a
place is available in a bail hostel. Alternatively, if his address is found to
be sufficiently stable, electronic tagging could be considered, as could
reporting requirements in order to minimise the chance of Smith’s
forgetting to appear.
(b)
Smith should already have had the benefit of advice at the police station.
He can now apply for a representation order. As the charge is indictable
only, the case will be heard in the Crown Court, and the merits test will
automatically be deemed to be satisfied. Smith is in receipt of income
based Job Seekers Allowance. This is a passporting benefit, so he will also
meet the means criteria with a nil contribution.
(c)
The initial hearing in the magistrates’ court will deal with bail, the
representation order, and any other ancillary matters. The magistrates will
then send the case to the Crown Court. There will be a preliminary hearing
after seven days when a further bail application could be made, if
appropriate, and a date for the plea and case management hearing set.
The prosecution will give primary disclosure, and the defence must serve a
defence statement. At the plea and case management hearing, Smith has
the opportunity to plead guilty, and ask the judge for a Goodyear
indication. Subject to the availability of the pre-sentence report, he may
be sentenced either at the time or at a date in the near future. Otherwise
the court will give directions in relation to a subsequent trial.
(d)
Smith can offer a basis of plea. This may be accepted by the prosecution.
If so, Smith must then be sentenced on that basis. If the prosecution do
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not agree, and the judge indicates that he is considering different
sentences in relation to the two versions, a Newton (1983) hearing must
be held at which the judge will hear evidence and determine whether the
prosecution has proved the more serious version. Whether or not a
weapon was produced and/or used may make the difference between an
offence at level 1 and one at level 2 in the sentencing guidelines for street
robberies, which potentially has a significant effect on the sentence which
should be imposed.
Question 3
(a)
Maria Lewis has been charged with an either way offence. Assuming
advance disclosure has been given, her initial appearance in the
magistrates’ court will deal with plea before venue and allocation. It
appears that Lewis will plead not guilty. If she were to indicate a plea of
guilty at the plea before venue stage, the magistrates would take that as a
guilty plea and proceed either to sentence (with or without an
adjournment for reports) or commit to the Crown Court for sentence if
their sentencing powers were inadequate.
Following an indication of a not guilty plea, the court will hear
representations by the prosecution outlining the circumstances of the case
and their recommendations as to venue. The defence can also make
submissions, but the magistrates must accept the prosecution version of
the facts. Here, that version suggests a premeditated, unprovoked attack
with a weapon.
The magistrates will initially consider whether they should accept
jurisdiction or allocate the case to the Crown Court. They will take account
of the statutory factors in s.19 Magistrates’ Courts Act 1980. This is not a
legally or technically complicated case, so they will have regard principally
to their sentencing powers as set out in the Magistrates Court Sentencing
Guidelines. They will also consider, so far as they are relevant, the
guidelines contained in the Criminal Procedure Rules.
There is a presumption in favour of retaining jurisdiction. Here the offence
appears to be in category two. The injury is not particularly severe so the
court is likely to conclude that the case involves lesser harm, but greater
culpability, based on premeditation and use of a weapon. The starting
point is 26 weeks custody and the range from a community penalty to 51
weeks custody.
On balance, the court is likely to accept jurisdiction. Lewis will therefore
have the option of electing summary trial or trial on indictment. The case
does not turn primarily on police evidence, and whilst there is a belief that
juries are more likely to be sympathetic to the defence case, this is not
such an important factor in cases of this type.
Crown Court trial does have procedural advantages, but it is unlikely that
there are any particularly complex issues of evidence or procedure. A
magistrates’ court trial is quicker, cheaper and less stressful. Lewis may
qualify for a representation order in the Crown Court, but will certainly
have to make a substantial financial contribution, and potentially a much
higher costs order and a higher Criminal Courts Charge (if the offence date
is after 15 April 2015).
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(b)
The first question is whether they are competent witnesses. All witnesses
are presumed competent and even witnesses of very tender years have
been found so, e.g. MacPherson (2005). If competence is in issue, the
party wishing to call the evidence has the burden of establishing it: ss.534 Youth Justice and Criminal Evidence Act 1999 (YJCEA).
If they are competent, they will qualify for special measures directions on
grounds of age: s.16 YJCEA. Normally their evidence in chief will be given
as a pre-recorded video, and cross examination will take place by video
link. Other measures will include removal of wigs and gowns: YJCEA Part
Two, Ch 1. Even if she is acting in person Maria Lewis will not be allowed
to cross examine them herself: s.36 YJCEA. Their identities may not be
disclosed.
(c)
You must not knowingly be party to an attempt to mislead the court or be
involved with anyone else seeking so to do: SRA Code, O(5.1) and O(5.2).
Here it is clear that the witness has been asked to give untrue evidence.
You may not be involved in any way in dealing with the case in a way
which relies on this evidence. However, as long as this witness has no
further involvement, there is no reason why you cannot continue to act for
Maria Lewis.
Question 4
(a)
The defence is essentially one of self-defence. The prosecution case is that
this was a premeditated unprovoked attack. The defence case is that
Janice Goodwin escalated the argument into a potential fight by taking up
a bottle and threatening Maria Lewis with it. It is for the defence to raise
this issue, but once it is a live issue it is for the prosecution to satisfy the
jury to the criminal standard that Maria Lewis was not acting in selfdefence. The jury would also have to consider whether she was acting in
self-defence but the self-defence was excessive, as this would defeat the
defence.
It is a matter for the jury what weight they give to the various pieces of
evidence, namely the accounts of the complainant and defendant, the
evidence of the child eyewitnesses and the evidence of the conversation
indicating premeditation. It will be necessary for Maria Lewis to give
evidence both to raise the issue of self-defence, and to explain the earlier
conversation. Jason Ellis is a competent and compellable witness for both
prosecution and defence, since he is not married to Maria Lewis, but the
prosecution are unlikely to call him as he is unlikely to assist them.
The other significant issue is that, since she is of good character, she is
entitled to a full Vye (1993) direction both as to propensity and credibility.
We have no information as to whether Goodwin is of good character. If
she were not, the defence could raise this bad character without any
adverse consequences.
(b)
Maria Lewis will of course not get any credit for a guilty plea, as she did
not enter one, nor will she get any credit for remorse. The judge will have
heard the evidence, but can be asked to indicate whether he regards this
as an unprovoked assault or excessive self-defence. On the assumption
that this is a level 2 offence, the critical issue is whether the custody
threshold has been crossed. Whilst there is some evidence of
premeditation, there is no suggestion that a weapon was chosen in
advance.
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There has clearly been a background of ill feeling. Personal mitigation is
previous good character and being in settled employment. Mitigation
should focus on avoiding an immediate custodial sentence. Depending on
the contents of the pre-sentence report, it is likely that Lewis will be
regarded as suitable for a community penalty involving an unpaid work
requirement, and a curfew requirement could also be considered.
Attendance at an anger management course might also be considered.
If the judge is satisfied that the custody threshold has been crossed, this
sentence can be suspended and this should be pursued in order to protect
Lewis’s employment. Lewis is also clearly in a position to meet a
compensation order if the court considers that is appropriate.
(c)
Appeal will lie to the Court of Appeal (Criminal Division). An application for
leave to appeal must be made within 28 days of conviction for an appeal
against conviction and within 28 days of sentence for an appeal against
sentence and should include the grounds for appeal. Leave may be
granted on the papers by a single judge. If it is refused, the application
may be renewed before the full Court. The sole ground of appeal against
conviction is that the conviction is unsafe: s2 Criminal Appeal Act 1968.
Normally the appellant must rely on an error of law or procedure by the
judge rendering the jury’s verdict unsafe. If the appeal is allowed the
Court may order a retrial unless it is satisfied of the defendant’s
innocence. An appeal against sentence will be allowed if the sentence was
wrong in law (e.g. in excess of the statutory maximum for the offence) or
manifestly excessive.
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