LEVEL 6 - UNIT 18 CRIMINAL LITIGATION SUGGESTED ANSWERS JANUARY 2015

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1 LEVEL 6 - UNIT 18 CRIMINAL LITIGATION SUGGESTED ANSWERS JANUARY 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 January 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) All the defendants in this case are juveniles. The case will therefore commence in the Youth Court. This is a specialised court composed of specially trained lay justices and District Judges. Robbery is a grave crime for the purposes of sections 90 to 92 of the Powers of Criminal Courts (Sentencing) Act There is a strong presumption that the case will remain in the Youth Court notwithstanding this: R (H, A & O) v Southampton Youth Court (2005). The court might consider allocating the case to the Crown Court. It should only do so if it considers that a custodial sentence in excess of its own maximum (a 24 month Detention and Training Order) is likely to be imposed. The allocation decision should be taken for each defendant. From the information we have this offence appears to be at the lower end of category 2 robbery according to the official Sentencing Guidelines. While allocation to the Crown Court might be justified for the older defendants, considering the age of Tasha Blackett and her peripheral involvement, one would expect the Youth Court to retain jurisdiction. In addition it is a general principle of youth justice that custody is a last resort particularly for younger defendants. There is certainly nothing to suggest that Tasha Blackett would qualify as a dangerous offender. (b) An allocation decision is susceptible to judicial review. An application for leave would be made, and if successful a full hearing will occur in the Administrative Court. This court has to consider whether the decision is unlawful, irrational (Wednesbury unreasonable), or tainted by procedural impropriety. The Sentencing Guidelines referred to above actually suggest that the case is quite close to the custody threshold, and there is nothing in the guidelines to suggest that a custodial sentence significantly in excess of two years could be appropriate. This potentially gives two grounds for judicial review, procedural Page 1 of 7

2 impropriety in the sense that the decision appears not to have proper regard for the official guidelines, and also that the decision is Wednesbury unreasonable: R (T) v Bromley Youth Court (2014). If the application is successful the case will continue in the Youth Court. (c) According to the Sentencing Guidelines a category 2 robbery has a starting point for sentencing purposes of three years detention for an offender aged 17 and the sentencing range is a custodial sentence of one to six years. The Guidelines indicate that a lower sentence is appropriate for a younger defendant and where the involvement is peripheral, as it is in the case of Tasha Blackett. It is also significant that she did not herself use any violence. These are all mitigating factors, and she is entitled to credit for her admission of guilt. There are positive points to be made in relation to home life, education, evidence of genuine remorse and non-association with her co-accused. These should all be stressed. Having regard to the fact that the overriding objective of sentencing in the Youth Court is to prevent offending, and the court must also have regard to the welfare of the defendant, it is probable that the custody threshold has not been crossed. Given that Tasha Blackett has already completed a Youth Referral Order, she would not normally be eligible for one now. The offence clearly appears serious enough for a community penalty, in the form of a Youth Rehabilitation Order. In the light of the comments in the Pre-Sentence Report it would seem that Tasha Blackett is at low risk of reoffending, but has committed a relatively serious offence. The detailed provisions of the order are therefore likely to focus on punishment, such as an Activity Requirement, Attendance Centre Requirement or a Curfew/Electronic Monitoring Requirement. The mitigation would highlight the positive comments in the Pre-Sentence Report, argue that the so serious custody threshold has not been reached, and deal with any specific issues as to the contents of the Youth Rehabilitation Order being argued for. Question 2 (a) Rex King could fund his defence privately. However, it is our professional obligation to advise him on public funding if it is likely to be relevant. Given what is said below, it will be. In the first instance Rex King will need to make an application for a representation order. This will be made to the Magistrates Court using forms CRM 14 and 15. If the application is not made until the court has allocated the case to the Crown Court, the merits test would be automatically met. If it is made earlier, it will be necessary to demonstrate that Rex King is likely to suffer serious damage to his reputation or is at serious risk of losing his liberty. Having regard to the nature of the allegation, particularly that he is alleged to have assaulted a public servant going about his public functions, a custodial sentence can certainly not be excluded. He is of good character and the conviction would therefore affect his reputation.so far as the means test is concerned, given the information as to his earnings and his family responsibilities it seems clear that the available deductions from his actual income will bring him within the eligibility limits for the Magistrates Court and he would qualify for legal aid in the Crown Court with no contribution. Page 2 of 7

3 (b) The prosecution will provide advance disclosure and Rex King will appear in the Magistrates Court for what will probably be a combined plea before venue and allocation hearing. He will initially be asked whether he pleads guilty or not guilty. Assuming he maintains his plea of not guilty the court will proceed to hear representations as to venue. The prosecution will outline the case in accordance with their information. Their case is that this is an unprovoked attack and the victim did nothing to lead King to attack him. The court must accept the prosecution version, so there is no point in the defence arguing that the issue is whether King used excessive force in self-defence (which would be a significant mitigating factor). The court will take account of the statutory factors in section 19 of the Magistrates Court Act The most important factors are the seriousness of the case and whether they have adequate sentencing powers to deal with it. They will refer to the Magistrates Court Sentencing Guidelines, and also to the allocation guidelines contained within the Criminal Procedure Rules. The presumption is that the case will be allocated to the Magistrates Court unless there are aggravating features. If the court concludes that it can allocate the case to itself, King will then have an election for allocation to the Crown Court. If the Magistrates Court declines jurisdiction, King will have no option. Here the key feature is likely to be whether the magistrates consider they have adequate sentencing powers. This appears to be a category two ABH. The injuries are not particularly serious but the kick is an aggravating feature indicating higher culpability. The fact that it is an attack on a public servant is also an aggravating feature. But the starting point for such an offence is 26 weeks custody which leaves it within the magistrates jurisdiction. The fact that King is of previous good character would be a mitigating factor if he were convicted, and in the circumstances there appears to be no good reason for the magistrates to decline jurisdiction. When considering his election, if he has one, King will no doubt consider that the Magistrates Court is quicker and cheaper and less formal. It is generally held that the chances of acquittal are higher in the Crown Court. This is particularly the case where police witnesses are concerned, as the perception is that magistrates are more reluctant to doubt police evidence. Here the police evidence is not central to the case, so this is not a factor. It is unlikely that any significant points of law, evidence or procedure are going to arise, so this is not a compelling reason to opt for the Crown Court. There is however a greater risk of a custodial sentence exceeding 26 weeks, and possibly an adverse costs order which will be higher in the Crown Court even if King escapes a custodial sentence. (c) There are two quite distinct modes of appeal from the Magistrates Court. King can appeal to the Crown Court under section 108 Magistrates Courts Act The appeal must normally be lodged within 21 days and will result in a complete rehearing of the case before a Crown Court composed of a judge sitting with normally two lay justices. King runs the risk that, if the appeal is unsuccessful, the Crown Court may impose a harsher sentence provided it is one which the Magistrates Court could have imposed. He is also at risk of an adverse costs order. The alternative mode of appeal is by way of case stated under section 111 Magistrates Courts Act This would be appropriate if the basis of the appeal was that there had been an error of law. The appeal lies to the Divisional Court of the Queen s Bench Division and the magistrates will be asked to produce a Page 3 of 7

4 case which represents a summary of the evidence, their findings of fact and the legal basis of their decision and will pose questions to the Divisional Court as to whether the decision was right in law on specific grounds. The magistrates court may decline to state a case if it is satisfied that there is no legitimate basis for this. The principal risk for King is that of an adverse costs order. Question 3 (a) Robles will have the usual options in relation to the interview. He could choose to answer all the questions put to him, which if he is pleading not guilty will ensure that no adverse inferences can later be drawn under section 34 Criminal Justice and Public Order Act If, which does not appear to be the case, he is pleading guilty a full confession at the earliest opportunity will secure maximum credit in sentencing. He is entitled to remain silent, but unless he accompanies this with a comprehensive and accurate written statement, he runs the risk of adverse inferences under section 34 if he later relies on matters which he could have disclosed at this point. He does not in practice have the option to choose which questions to answer, as such partial responses usually make a bad impression on the court. Here there is a fairly full disclosure of the prosecution case, and the complainant, if believed, establishes that there was an intentional touching of a sexual nature and that she did not consent. These are three of the necessary ingredients, and the fourth is that Robles did not reasonably believe that she consented. There appears to be no conceivable reason why he should not explain himself, either by answering questions, or if he is concerned that he will not stand up well to questioning, by drafting a comprehensive written statement to accompany a no comment interview. If he is convincing the police or CPS may decide that their case is not robust enough in relation to the consent issues to charge Robles. The decision is one for him, but your advice should spell out the consequences as set out above. The police are likely to seek a non-intimate DNA sample. It may be that this can establish whether or not Robles made contact with the complainant s bra. The police will initially ask for consent, but have the power to take the sample without consent and use reasonable force for the purpose. From the information given, there is nothing to suggest that the police have not complied with the requirements of Code C in relation to the documentation of detention and the treatment of Robles while in custody. Although he is Spanish he has lived in the UK for 15 years, so it is highly unlikely that he will need an interpreter. He is of course as a foreign national entitled to consular assistance. (b) It is a criminal offence under section 6 Bail Act 1976 to fail without reasonable cause to surrender to custody at the required time and place. He will probably be charged with this offence when he next appears in court. An error as to the date is not a reasonable cause so he has little alternative but to plead guilty. This allegation can be dealt with as a summary offence in the Magistrates Court or as a criminal contempt of court in the Crown Court. It is standard practice to keep the Bail Act offence with the substantive offence, so if the substantive offence is allocated to the Crown Court the Bail Act offence can be sent there as well. As a warrant has been issued, Robles should be instructed to surrender at the earliest opportunity. If the court has a Bridewell he should surrender there before the court sits, alternatively he can surrender at a police station. He will then be Page 4 of 7

5 put before the Magistrates Court. If the court is satisfied that there is a risk he will abscond again, he may be remanded in custody. There is no suggestion that he has breached any of the other conditions of his bail so there is no need to consider these. If the court is satisfied that it was a genuine error, and will not be repeated, he can be re-bailed on the same or more onerous conditions: section 7 Bail Act. The court might for example impose a reporting condition to ensure that he remains alert to his obligations. (c) We have not been given specific information on how serious the complainant s learning disabilities are. If they are mild, then they may not impact at all. If they are moderate or severe various issues may need to be dealt with at the Plea and Case Management Hearing or at a specific preliminary hearing. The defence might seek to argue that she lacks capacity to testify, or at least to give sworn testimony. However, children as young as four have been held to have capacity so the learning disabilities would have to be extremely severe for her to lack capacity. If the issue is seriously raised the prosecution have the burden of demonstrating that she has capacity. If she can give intelligible testimony, but lacks awareness of the particular significance of an oath she can give unsworn testimony: sections 54 to 56 Youth Justice and Criminal Evidence Act 1998 (YJCEA). It is more likely that an application will be made for a special measures direction under section 19 YJCEA. This will be on the basis that she is a vulnerable witness by virtue of her disability: section 16 YJCEA. She is also vulnerable by reason of age, and as complainant in a sexual offence. As she has already given evidence by way of a video recorded interview it is likely that this will be ordered to stand as her evidence in chief: section 27 YJCEA. Other possible measures include giving evidence in private: section 25 YJCEA, the use of screens: section 23 YJCEA and the use of a live link for cross examination: section 24 YJCEA. In any event as this is a sexual offence Robles would not be allowed to cross examine her personally: section 34 YJCEA. (d) The mere fact that Robles is changing his instructions creates no professional conduct issue. You should satisfy yourself as far as is possible that he is making a free and informed choice, and explain the implications, including the credit he will get for an, albeit belated, guilty plea and for not putting the complainant through the ordeal of giving evidence. It may be possible to agree a basis of plea with the prosecution in line with your new instructions, and it is also possible to ask the judge to give a Goodyear sentencing indication. Under the 2014 Sexual Offences Sentencing Guidelines, if the complainant is seen as particularly vulnerable, which will depend on the extent of her learning disabilities, this aggravating factor will put the offence into category 2B. Otherwise it will be category 3B. The guidelines indicate that such an offence is close to the custody threshold but with the advantage of a guilty plea and no other aggravating features the judge may be persuaded that the custody threshold has not been crossed and will impose a community sentence. Question 4 (a) Following allocation the prosecution must give primary disclosure of any material in their possession which undermines the prosecution case or assists the defence case, so far as then known: section 3 Criminal Procedure and Investigation Act 1996 (CPIA). This triggers the obligation to file a defence statement: section 5 CPIA. The contents are regulated by section 6A CPIA. It must cover (a) the nature of the Page 5 of 7

6 defence here that Izzett was not the assailant and has an alibi; (b) the matters of fact on which the defendant takes issue whether Izzett was the person seen by the eyewitnesses at the scene; (c) the reason why issue is taken that the witnesses are mistaken, and in the case of the witness from the fast food shop, has a motive to implicate him; (d) any issues of law here there do not appear to be any obvious ones. Normally details of witnesses in support of the alibi would need to be given, but none are available. Following receipt of the defence statement the prosecution must give secondary disclosure of any material which would support the defence disclosed. Here any material relating to the witness from the fast food shop which supports her having a relationship with the other potential suspect would fall in that category. (b) 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). However it is not your function to definitively evaluate the evidence or seek to determine whether or not it is truthful. It would be prudent to explain to the witness that he must only give evidence which is truthful, and if he knowingly gives evidence which is untrue is exposing himself to a prosecution for perjury. It would also be prudent to discuss the matter with the client and point out to him the potential adverse implications if the evidence is adduced and is demonstrated to be false. If the evidence is to be adduced, notice must be given to the prosecution and the court together with an explanation of the reason for the late service of the details. (c) This case turns primarily upon identification evidence. There are three identification witnesses. It will be necessary to check that the VIPER identification procedure was properly undertaken in accordance with PACE Code D. However, there is nothing to suggest anything untoward. In particular the witnesses may view the images as many times as they wish: Annex A paragraph 11. This is clearly a case where a full Turnbull direction must be given. The judge must warn the jury of the problems with identification and that a convincing witness can still be a mistaken witness. The two direct witnesses of the incident made their observation at night, albeit with the benefit of a street light. It was a relatively short observation of a stranger in adverse circumstances. The witness in the fast food shop, if her evidence is taken at face value, will have seen the individual under better lighting conditions, and probably for longer. Each identification as such is probably weak, but they can mutually support each other, so the judge will probably leave the case to the jury. The other evidence in the case is largely circumstantial. Given that the fleece jacket from which the matching fibres came was found in a living room, and has multiple DNA traces, it does not really provide any strong evidence that Izzett was wearing it to commit the crime. The background police evidence does provide evidence of a motive, but it is not a motive unique to Izzett. The police could indeed be cross examined as to why they appear to have excluded Cembu from the investigation, rather than testing whether the witnesses might identify him rather than Izzett in a VIPER procedure. Assuming that it can be demonstrated that the witness in the fast food shop is indeed the best friend of Cembu s sister, this does indicate a motive for her to implicate Izzett in order to deflect suspicion from Cembu. If this issue is raised, the judge should direct the jury of the need for caution in relying on her evidence because of the possibility that she is protecting someone else. This is part of the Page 6 of 7

7 responsibility of the judge to ensure that the defence is fairly and properly put: Spencer (1987), and is not dependent on the witness herself being of bad character. However, in alleging an improper motive on the part of the witness Izzett may put his own character in issue under gateway (g) of section 101 Criminal Justice Act (CJA) 2003 since he is alleging that the witness has behaved in a reprehensible way: section 106 (2) (b) CJA The prosecution may seek to use his bad character in any event as evidence of propensity. The alibi, in the sense of the assertion that Izzett was in the Black Orchid Club at the time of the offence, was raised in his written statement when first interviewed. There can therefore be no adverse inference relating to the alibi itself. Whether adverse inferences can be drawn from the late service of details of the alibi witness will depend on what reasons are adduced for the delay. If it is genuinely the case that the witness has only just come forward, then this may be acceptable. Inferences could also be drawn if the defence case at trial is inconsistent with the initial statement or the defence statement under section 6A CPIA. Page 7 of 7