Paper 11
Questions based on Issues 29, 30 and 31 of 2010
ISSUE 29
Evidence and procedure
1. (i) It was held in R. v. A. (item 2) that, whilst there is a duty on police officers conducting an interview with a suspect not to mislead him, there is no duty on the police to disclose their hand to the suspect or his solicitor prior to interview. (ii) It was held in R. v. Rollins (item 7) that the Financial Services Authority does not have the power to prosecute offences other than those expressly mentioned in sections 401 and 402 of the Financial Services and Markets Act 2000 (which confer statutory power on the authority to prosecute specified offences without obtaining the consent of the D.P.P., subject to compliance with any conditions or restrictions imposed in writing by the Treasury).
(A) (i) is correct; (ii) is incorrect.
(B) (i) is incorrect; (ii) is correct.
(C) Both are correct.
(D) Both are incorrect.
2. Which of the following statements is incorrect?
(A) It was held in D.P.P. v. Leigh (item 4) that oral evidence of a police administrator as to the absence of an entry in the police computer database, where the absence went to show that the defendant had not responded to a request for information, contrary to section 172 of the Road Traffic Act 1988, was not hearsay within the meaning of Chapter 2 of Part 11 of the CJA 2003, but primary evidence.
(B) It was further held that it was of course legitimate to infer from the absence of an entry that no reply was given, but that did not make the evidence hearsay, and that whether the inference could be drawn in any particular case would depend on the evidence, with respect to various matters, including the reliability of the record and the care of the checker.
(C) It was held in R. (W. and M.) v. Oldham Youth Court (item 6) that, insofar as a magistrates’ court, committing a 13-year-old defendant to the Crown Court for trial for an offence of rape of a four-year old boy, had regarded the matter as determined by its decision to commit an 11-year-old to the Crown Court for offences of raping and sexually assaulting the same victim, it had erred.
(D) It was also held that, when considering whether there was a “real prospect” that the powers under section 91 of the PCC(S)A 2000 (i.e. to detain for in excess of two years) would or might be required, “real prospect” involves having regard to the realities of a case, which must necessarily include likely matters of aggravation and mitigation, but should not include the likely plea.
3. Which of the following statements, based on the digest of R. v. Thompson; R. v. Crawford; R. v. Gomulu; R. v. Allen; R. v. Kasunga; R. v. Blake (item 5), is incorrect?
(A) Evidence about the deliberations of a jury is inadmissible, except where there has been a complete repudiation of the oath taken by the jurors to try the case on the evidence (as by resorting to use of a ouija board) or where extraneous material has been introduced into the jury deliberations (such as papers mistakenly admitted to the jury room, discussions with outsiders and, more recently, information derived from research on the internet).
(B) Trial judges should underline unequivocally the collective responsibility of jurors for their own conduct, and jurors should understand that any irregularity must be brought to the attention of the judge immediately, since precisely because of confidentiality and collective responsibility for the verdict, it will be too late to do so after the end of the trial.
(C) It must be for the judge to decide in the individual case whether or not to caution the jury against use of the internet to research the case. Whilst this will be prudent in cases that are anticipated to be long or complex or to be likely to attract publicity, there will be other, more routine cases, where a judge may legitimately take the view that drawing attention to the internet may be to invite the danger which it is sought to avoid.
(D) Judges must provide guidance which reminds the jury that each member has an equal responsibility for the verdict, that it is inevitable that different views will be expressed about different features of the case, and that there must be reasonable give and take between members of the jury, with an opportunity for each to be heard and his opinions considered.
4. Which of the following statements, relating to trial on indictment without a jury, is incorrect?
(A) In R. v. K.S., it was held that, although the conditions for ordering trial without a jury in section 44(4) and (5) of the CJA 2003 are distinct, and must both be established before an order for trial by judge alone can be made, the context and nature of the threat of jury tampering fall for examination when subsection (5) and the reasonableness of proposed protective steps are being considered.
(B) It was further held that any proposed protective measures must be proportionate to the threat and that unduly alarmist proposals (in terms of the likely adverse impact on the jury and on precious police resources) should be resisted.
(C) In R. v. J., S. and M., it was held that, notwithstanding section 44 of the CJA 2003, ordering the trial of a criminal offence without a jury must remain a decision of last resort, only to be ordered when the court is sure (and not when it entertains doubts, suspicions or reservations) that the statutory conditions are fulfilled.
(D) On the same principle, it was also held that if, during the course of a jury trial, attempts are made to tamper with the jury to the extent that the judge feels it necessary to discharge the jury, it should only be in exceptional circumstances, and after having considered and rejected all potential measures available to protect a new jury, that the judge should continue with the trial and deliver a judgment and verdict on his own.
Substantive law/ Sentence
5. (i) It was held in D.P.P. v. Chivers, in relation to the offence of aggravated trespass, that “land” in sections 68 and 69 of the CJPOA 1994 does not include buildings, but rather means land, other than certain highways and roads, in the open air. (ii) It was held in R. v. Waller that imprisonment for public protection, for offences of making indecent photographs of a child, where the offender had downloaded images from the internet, should be replaced with a determinate sentence with a sexual offences prevention order, since the link between the offending act of downloading the images and the possible harm to children was too remote for it to be said that any further such offences committed by the appellant would cause serious harm to the children involved.
(A) (i) is correct; (ii) is incorrect.
(B) (i) is incorrect; (ii) is correct.
(C) Both are correct.
(D) Both are incorrect.
New legislation
6. Which of the following statements, concerning the amendments to the Criminal Procedure Rules 2010 by the Criminal Procedure (Amendment) Rules 2010, is incorrect?
(A) Rule 3.10 is amended to require the court to consider setting a timetable for the hearing of a trial or an appeal, and to allow the court to impose limits on the examination, cross-examination or re-examination of a witness, and the duration of any stage of a hearing.
(B) Rule 19.17(4) is amended so as to permit an unrepresented defendant to be present in the Crown Court at the hearing of a prosecutor’s appeal against the grant of bail by a magistrates’ court, and to permit a represented defendant to be present at such a hearing where the magistrates’ court had granted unconditional bail (to take account of Allen v. U.K.).
(C) Part 29 (measures to assist a witness or defendant to give evidence) is amended so as to include in rule 29.1 (when this part applies) reference to the power of a court to give, or discharge, a live link direction under the CJA 1988, s.32, or the CJA 2003, ss.51 and 52, and to add a new section 6, which contains rules about applications for witnesses to give evidence by live link.
(D) A new Part 44 (breach, revocation and amendment of community and other orders) is substituted, so as to make the rules applicable in the Crown Court as well as in magistrates’ courts, and to take account of legislative changes.
ISSUE 30
Evidence and procedure
7. Which of the following statements, relating to appeals, is incorrect?
(A) In R. v. Simpson, it was held that it would be a rare case where failure to make an approach, which could have been made, to a co-accused who had pleaded guilty with a view to calling him to give evidence for the defence would satisfy the condition in section 23(2)(d) of the Criminal Appeal Act 1968, so as to permit that evidence to be called on appeal.
(B) In R. v. Dhillon, it was held that the authorities on challenging a jury’s verdict on the grounds that inconsistent verdicts have been returned establish, inter alia, that the test for determining whether a conviction can stand is the statutory test as to whether it is safe, and that a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.
(C) It was further held that those authorities also establish that even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency, and it is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed.
(D) It was also held that a verdict will not be illogical simply because credibility is in issue, each count depends upon the uncorroborated account of a single complainant, and the jury convict on one (or some) count(s) but acquit on another (others), that in such cases, there is likely to be an obvious legitimate train of reasoning to explain the verdicts, and that this applies as much to a case where the various alleged offences are simply different aspects of a single sexual encounter as to one where they are alleged to have occurred in chronologically separate encounters.
8. Which of the following statements, relating to the admissibility of evidence of bad character, is incorrect?
(A) In R. v. Brewster and Cromwell, it was held that the first question for the judge under section 100(1)(b) of the CJA 2003 is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole, that this is a significant hurdle, and that just because a witness has convictions does not mean that the opposing party is entitled to attack his credibility.
(B) It was further held that, if it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue, and that whether convictions have persuasive value on the issue of creditworthiness will depend principally on to what extent they demonstrate any tendency towards dishonesty or untruthfulness.
(C) In R. v. Chrysostomou, it was held that where the defendant (charged with harassment and an offence under the Firearms Act 1968) had given evidence to the effect that the complainant was a Class A drug user, this was an “attack” on her character, within the CJA 2003, s.101(1)(g).
(D) However, it was further held that the judge should have excluded evidence that suggested that the defendant was himself a dealer in Class A drugs under section 101(3) where the evidence had no relevance other than to blacken the general character of the defendant in the eyes of the jury and, therefore, dent the credibility of his evidence generally.
9. (i) It was held in Rymer v. D.P.P. that where a defendant pleads guilty by post, pursuant to the procedure provided for by section 12 of the MCA 1980, and where the court, having accepted the plea and convicted the defendant under subsection (5), adjourns the matter for consideration of the question of disqualification (from driving), section 12(9) does not give the defendant the right to plead not guilty, or to change his plea to one of not guilty at the adjourned hearing. (ii) It was held in R. v. Chrysostomou (item 6) that if the purpose of adducing evidence, which is not in the form of oral evidence in the proceedings, is not to prove a matter stated, then the hearsay provisions of the CJA 2003 have no application, and that text messages, sought to be admitted as evidence of an implied assertion, were not therefore hearsay and, subject to any other objections to admissibility, could be admitted in evidence in the proceedings.
(A) (i) is correct; (ii) is incorrect.
(B) (i) is incorrect; (ii) is correct.
(C) Both are correct.
(D) Both are incorrect.
Substantive law/ Sentence
10. Which of the following statements is incorrect?
(A) It was held in R. v. Winter and Winter that a duty to take reasonable care in the storage and handling of fireworks (including fireworks that posed a mass explosion hazard) was not owed by the defendants (respectively the director and employee of a fireworks company) to a civilian media awareness officer employed by the fire service to video events; that officer’s deliberate disregard of instructions from firemen at the scene absolved them of any responsibility for his death.
(B) It was held in R. v. D. that there is no automatic entitlement, where an individual provides information of significant value and fulfils his side of an agreement with the Serious Organised Crime Agency, to a “normal” discount of between 50 and 66 per cent of the sentence that would have been passed after a trial, that what the defendant has earned by participating in the written agreement system under section 73 of the SOCPA 2005 is an appropriate reward for the assistance provided to the administration of justice, and that that, in the end, is always fact-specific.
(C) It was held in R. v. Newman that advance indications of sentence pursuant to R. v. Goodyear (Practice note) are, save in exceptional cases, binding in so far as they go, that particular caution is therefore warranted where such an indication is sought in the case of a specified offence which might attract an indeterminate sentence, and that where a judge realises that, in giving an indication, he has been plainly in error, the public interest in an appropriate sentence must trump any question of disappointment on the part of the defendant.
(D) The court approved the course the judge had taken of offering the defendant the opportunity of vacating his plea, and observed that if it were not open to a judge to correct a clear error, the outcome might be a reference of the sentence to the Court of Appeal by the Attorney-General (who is not bound by any Goodyear indication).
ISSUE 31
Evidence and procedure
11. Which of the following statements is incorrect?
(A) The Consolidated Criminal Practice Direction (Amendment No. 25) (Criminal Proceedings: Listing, Case Management) amends the Practice Direction (Criminal Proceedings: Consolidation) so as to impose requirements relating to the pagination and indexing of served evidence in the Crown Court, and to insert the text of chapter 16 (listing of cases before the Crown Court) of the Crown Court Manual as a new Annex F.
(B) In R. v. F.B.; R. v. A.B.; R. v. J.C., it was held that a judge of the Crown Court has no power to quash a properly preferred indictment, either at common law or under his case management powers, and that the “overriding objective” (that cases be dealt with justly (as set out in rule 1.1 of the Criminal Procedure Rules 2010)) is not a free-standing principle of law, but rather creates a framework against which the 2010 rules must be construed.
(C) It was further held that, if done appropriately, a judge is entitled to express his view of a case and to encourage a prosecutor to reconsider the public interest in prosecution, but that he has no power to prevent a prosecution he believes unmeritorious, or unworthy of the expense of public funds involved.
(D) In R. v. S.H. (item 3), it was held that the common law right of a jury to acquit at any time after the close of the prosecution case still exists, and that there may be circumstances, in particular following a question from the jury, where, despite the fact that the judge is not of the view that he should stop the case himself, it will be appropriate for him to inform the jury of their right to do so.
Substantive law/ Miscellaneous
12. Which of the following statements is incorrect?
(A) It was held in R. v. Chaytor, Morley, Devine and Lord Hanningfield that parliamentary privilege or immunity from criminal prosecution has never attached to ordinary criminal activities of members of Parliament (even where those activities are intimately connected to their duties as members of Parliament (such as the submission of claims for expenses)), and that the privilege enjoyed by individual members is concerned with what may be described as their involvement in the legislative process.
(B) It was held in R. v. S.H. (item 5) that section 28(1)(a) of the CDA 1998 is concerned with an “outward manifestation of racial … hostility” (what was said) and section 28(1)(b) with “the inner motivation of the offender” (why it was said), and that, accordingly, an offence may be aggravated within section 28(1)(a) where the offender demonstrates the relevant hostility, notwithstanding that his conduct is not motivated by such hostility but rather by some other unrelated matter.
(C) It was held in R. v. Gkampos that 70 pages of Greek antecedents and 123 pages relating to a prosecution in Canada, which had been served on the defence by the prosecution, fell within the definition of “pages of prosecution evidence” in paragraph 1(2) of Part 1 of Schedule 2 to the Criminal Defence Service (Funding) Order 2007.
(D) It was held in R. v. Ibefune that a Legal Services Commission guidance note relating to the computation of pages of prosecution evidence, which stated that the figure agreed at court at the end of a case could not be relied upon as proof of the number of pages of prosecution evidence for the purposes of Schedule 2 to the Criminal Defence Service (Funding) Order 2007 without additional objective evidence was, at least potentially, misleading.
CLW CPD Distance Learning Course for Barristers 2010
- Paper No. 11
- 29, 30 and 31
Continuing Professional Development
Registrants must answer all 12 questions. Those answering at least 8 questions correctly, will be awarded 1 CPD hour.
If you have any queries please contact the CLW CPD helpline on 01483 414040
 |
Criminal Law Week is published by Thomson Reuters (Legal) Limited, trading as Criminal Law Week. Registered Office: 100 Avenue Road, London, NW3 3PF Registered in England and Wales with Company No. 1679046 |
 |