LEVEL 6 - UNIT 18 CRIMINAL LITIGATION SUGGESTED ANSWERS - JANUARY 2014 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 2014 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 Specifically there are four issues to be dealt with. Firstly, at present these are third party instructions, which must be confirmed by Lembergs himself: SRA Code of Practice IB (1.25). Secondly, as he is Latvian he is entitled to consular assistance if required: PACE Code C 7.1. Thirdly, depending on his command of English, an interpreter may be needed: PACE Code C 13.2. Finally, his health and fitness for interview need to be confirmed, as he has been drinking: PACE Code C 9.5. Generally we will need to carry out a conflict check, check the custody record, liaise with the police to establish what they propose to do and what material they have, and finally explain procedures and your role to Lembergs. (b) The Police Station duty solicitor scheme is available here. It is neither means nor merits tested; it provides for advice in person or, when justified, by telephone. Here Lembergs is potentially vulnerable as a nonnative English speaker. Lembergs may request his own solicitor where, as here, they hold the relevant contract, but the matter must be routed via the Defence Solicitor Call Centre. Representation will be means and merits tested if the case is in the magistrates court, means only in the Crown Court. Merits test is based on the Widgery criteria. A conviction for a s 20 OAPA offence clearly carries the real risk of a custodial sentence, and, given that Lembergs has no convictions for violence, loss of reputation. Possibly he also needs representation because of language issues. The financial data given is very limited, but suggests he may qualify under the means test, as there will be an allowance for the child, but will have to undergo a full means assessment, as he is clearly above the lower threshold of 12,475. He Page 1 of 6
may not qualify if the case remains in the magistrates court and he is above the upper threshold of 22,325, and may have to make a contribution from income if the case goes to the Crown Court. The police can search the flat with Anna German s consent (PACE Code B 5), or if they have obtained a search warrant from the magistrates court (PACE s 8). In addition, as Lembergs is currently under arrest for an indictable offence, an inspector can authorise a search under s 18 PACE. This is because Lembergs occupies the flat. The search must be for evidence relating to the offence for which he has been arrested (e.g. bloodstained clothing). Ms German should be advised that if there is no warrant or authorisation she has the right to refuse to allow the search. (d) Here the situation is that there is an available suspect, who denies involvement in the offence, and a potential identification witness. An identification procedure must be used where there is an identified suspect, an eye-witnesses and the suspect denies being the person seen (PACE Code D 3.12). Visual identification procedures will be undertaken. VIPER is a video identification procedure governed by PACE Code D 3.5, 3.6 and Annex A. It involves standardised moving images of the suspect and comparators. VIPER is the preferred method (PACE Code D 3.14). It is seen as the most objective and is much easier to arrange than a parade as live comparators do not have to be found. It is more predictable than a group identification. It is also quick. Alternatives are a live parade, group identification and confrontation. Question 2 Lembergs can decline co-operation, but this refusal can be given in evidence, and the police may then use less controlled alternatives, such as covert filming or a group ID. Theft is an either way offence. The first step in the procedure following receipt of advance disclosure is Plea before Venue: s 17A MCA. On the assumption that there is no guilty plea matters then move to allocation to either magistrates court or Crown Court. The initial decision is for the magistrates, based on any prosecution representations. They will apply the statutory criteria, which largely focus on their sentencing powers: s 19 MCA; The Sentencing Council Magistrates Court Sentencing Guidelines will indicate the range of sentencing options. The allocation guidelines (CPR PD V51) indicate that the default position for theft is allocation for summary trial but here the prosecution case involves substantial theft from a vulnerable victim with elements of breach of trust (and the court must accept the prosecution case for allocation purposes). The sentencing guidelines indicate that this offence is on the borderline for allocation. The prosecution cannot dictate where the case is heard, and must make submissions in accordance with the Code for Crown Prosecutors. The defendant may request an indication of sentence (s 20 MCA). If the court declines jurisdiction the case will be allocated to the Crown Court and subsequently sent under s 51 CDA 98. If the case is deemed suitable for allocation for summary trial the defendant may elect Crown Court trial: s 20 MCA. If given a choice the client should consider that the Page 2 of 6
magistrates court is quicker and less stressful, which is clearly likely to be a consideration here. On the other hand the jury in the Crown Court, as triers of fact, may be more open minded about the circumstances. She will also have the benefit of a full direction from the judge on dishonesty in the light of the case law: Mazo (1997) and dicta in Hinks (2000). (b) The issue here is whether the grandmother is competent to testify, having regard to her medical condition. There is a general presumption of competence: s 53 YJCEA 99 which is satisfied if the witness can understand questions put to her and give intelligible answers. If competence is put in issue, by the defendant or by the court, the issue will be determined in the absence of the jury (usually at a preliminary hearing). The burden of proof is here on the prosecution, and expert medical evidence may be called: S 54 YJCEA. If found to be competent, she may nevertheless be considered to be a vulnerable witness by reason of her mental state: s 16 YJCEA. If so, protective measures under s 23-30 YJCEA may be directed e.g a live link, or video recorded evidence in chief to reduce stress, or the use of an intermediary if she has difficulty communicating. An alternative procedure, if she was initially competent, but her condition has deteriorated, is to admit her evidence as hearsay as she is unfit to be a witness because of [her] bodily or mental condition : s 116 (2) (b) Criminal Justice Act 2003. Advance disclosure of the positive prosecution case will have been given prior to allocation. After the case has been sent to Crown Court the prosecution must give primary disclosure (i.e. disclosure of material which undermines their case of assists the defence case as then known): S 3 CPIA 96. The defence must then give disclosure by way of a defence statement: s 5 CPIA. This in turn may trigger secondary disclosure if the prosecution hold unused material relevant to the issues raised. In this case the key issue is dishonesty. The defence statement must cover: The nature of the defence, which is that the defendant was not dishonest. The facts in issue, which are whether the transactions were a valid gift to which the grandmother consented with appropriate capacity. The point of law, which is what constitutes dishonesty in relation to a gift. The authorities in support of the point of law, which are Mazo (1997) and dicta of Lord Hutton in Hinks (2000). Question 3 Under s 86 Coroners and Justice Act 2009 an application may be made at a preliminary hearing for a witness anonymity order if the conditions under s 88 are met. This is an exceptional measure. The conditions are:- A the witness requires the protection of anonymity; one witness may be known to the defendant anyway. Under s 17 YJCEA protective measures are available for intimidated witnesses and this may be an alternative. B the defendant can still receive a fair trial; the provision is needed because Art 6 ECHR normally requires that the defendant can confront witnesses, and can only do so effectively if the witness is identified, but in Al Khawaja (2011) it has been accepted that a system of statutory Page 3 of 6
checks and balances is in principle adequate. The court must be convinced that the order is essential in the interests of justice. Here, one factor is that the defence appear to at least suspect the identity of one witness, and make specific allegations as to her veracity. A further question is whether these issues can be fairly addressed if the witness is anonymous: Donovan & Kafunda (2012) suggests not. C the testimony is important; clearly the case here. Special measures under the YJCEA might assist, but do not assure anonymity as such. (b) This is a terminating ruling within s 58 CJA 2003, in that it has the effect of bringing the case to an end, as the prosecution are not in a position to offer any evidence. The prosecution may, with leave, appeal the ruling to the Court of Appeal. There may be a brief adjournment to allow the prosecution to consider the position. If the appeal is pursued the prosecution must give an acquittal guarantee, namely that if the appeal fails Fox is to be acquitted definitively: s 58 (8) CJA. The grounds for allowing the appeal would be that the ruling was wrong in law; that the ruling involved an error of law or principle; or the ruling was a ruling that was not reasonable for a judge to have made: s 67 CJA. CPS guidance is that the procedure is only to be used sparingly and judiciously and where it is in the public interest. The defence is essentially that Fox is not involved, and has an alibi. There is no issue that an offence occurred, the circumstances or that the victim was injured, so there is no issue with the evidence on these issues. There is no mention of forensic evidence. Essentially the case resolves into the question can the prosecution prove that the three offenders went to the house and one of them was Fox? The key witness is the householder who states Fox was one of the three persons who came to the house and that she let them in because she knew him. It is not an identification case; Fox s case is that he knows who she is and she is lying as she has reason to dislike and therefore falsely implicate him. This opens a gateway for his bad character to be admitted: gateway (g) under s 101 Criminal Justice Act 2003 attack on another person s character. Fox gave a no comment interview. If he now gives evidence inferences can arise: s 34 CJPOA92, unless he had a reasonable explanation for his silence, and none is mentioned. The same applies to his alibi evidence. The inference is that the alibi has been concocted after the event. He cannot be convicted on the inference alone. Fox s bad character is also relevant for another reason and the prosecution can seek to admit it under gateway (d) as relevant to an important matter in issue namely propensity to commit the offence (his convictions for violence, although this could be resisted as they arose in different contexts) and propensity to be untruthful (his convictions for dishonesty). (d) Appeals from the Crown Court lie to the Court of Appeal (Criminal Division) under the Criminal Appeal Act 1968 (CAA). Leave of the Court is required. Notice of appeal must be lodged within 28 days of conviction. Trial counsel is required to advise on appeal and draft grounds if s/he considers that there are such. A single judge will consider the application on paper, but it can be renewed to the full court if rejected. Page 4 of 6
The sole ground of appeal against conviction is that the conviction is unsafe: s 2 CAA, that is to say, it is tainted by a serious error of law, procedure or case management such that it cannot be said that the jury would have convicted in the absence of the error. The court may quash the conviction and acquit Fox, quash the conviction and order a retrial or dismiss the appeal. Here it is arguable that the summing up contains a serious error and unless there is other very cogent evidence the jury may have improperly relied on the lies in reaching a verdict; however if the appeal is allowed a retrial is likely. Sentencing is not a precise science; the court will have regard to the relevant guidelines and also to the precise circumstances. The court must be satisfied that the sentence is outside the range that could properly be passed. If the judge has departed from the guidelines, has he given valid reasons and identified relevant aggravating features? Question 4 Paulson has a prima facie right to bail (Art 5 ECHR, s 4 Bail Act). The relevant criteria for withholding bail are likely to be that he will fail to surrender to custody or commit an offence while on bail. The objections to bail are likely to centre on the possibility of absconding, given his history of doing so, the nature and seriousness of the offences, particularly in the light of the history of previous convictions, the failure to abide by the terms of the Detention and Training Order (DTO) and the volume of offending at the present time. The court is also concerned with the welfare of the juvenile. If the court is satisfied that bail cannot be granted, which seems likely as the objections are powerful and there is little positive that can be said, then Paulson will be remanded to local authority accommodation: s 91-2 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO); this involves close supervision, but not necessarily closed conditions. The court has the option of imposing conditions analogous to bail conditions and/or electronic tagging: s 93-4 LASPO. Paulson also appears to meet the first set of conditions for a remand to youth detention accommodation, he is over 12, is charged with an offence carrying 14 years imprisonment for an adult, remand is necessary to prevent him committing imprisonable offences and he is represented: s 98 LASPO. He does not, on the material available, meet the history conditions under s 99. (b) (i) The natural venue remains the Youth Court, and the case will initially continue there with the first appearance of the co-accused. Juveniles will normally initially appear in the Youth Court and are normally tried and sentenced there. The formal criteria for a grave crime under s 91 Powers of Criminal Courts (Sentencing) Act 2000 are met, as dwelling-house burglary carries 14 years for an adult so allocation to the Crown Court and sending for trial are possible. Plea before Venue procedure applies, but the defendants have no right of election: s 24A MCA. The court must consider the likely sentence. There is a presumption against sending unless the case appears to demand a sentence clearly beyond the power of the YC (i.e. a 24 month DTO): R (H) v Southampton Youth Court (2005). It is at least arguable that this will be the case here as a DTO has already been breached, and there are multiple serious offences. Page 5 of 6
(ii) Paulson is now jointly charged with an adult, who will likely be committed to the Crown Court for sentence if he pleads guilty or allocated and sent to the Crown Court (s 51 CDA). Sentencing guidelines clearly indicate that multiple burglaries are not within the powers of the magistrates court. They may both appear in the adult magistrates court and Paulson be sent for trial as outlined in (i) above. Paulson could appear in the Youth Court and the adult be dealt with entirely separately. The Crown Court can remit Paulson to the Youth Court for sentence if not minded to impose more than a 24 month DTO. Taking offences into consideration is a means to dispose of them without full procedure. This is administratively convenient and saves resources. Paulson must admit the matters. He will not receive a specific sentence for them, but the overall sentence may be greater as they are an aggravating feature. Under the Sentencing Council Guidelines 2012 the TICs should not be more serious than the offences charged, and should be of the same kind. Page 6 of 6