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Criminal Litigation CHIEF EXAMINER COMMENTS WITH SUGGESTED ANSWERS JANUARY 2020 LEVEL 6 - UNIT 18 – CRIMINAL LITIGATION Note to Candidates and Learning Centre Tutors: The purpose of the suggested answers is to provide candidates and learning centre tutors with guidance as to the key points candidates should have included in their answers to the January 2020 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 candidates may have included in their responses to the questions. Candidates will have received credit, where applicable, for other points not addressed by the suggested answers. Candidates and learning centre tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ comments contained within this report, which provide feedback on candidate performance in the examination. CHIEF EXAMINER COMMENTS Overall, the approach of candidates has followed the recent trend. The majority of candidates have clearly used the opportunity given by the Case Study Materials to research matters such as whether the offence which has been or is likely to be charged is indictable only, either way or summary, and which category within the Sentencing Guidelines it is likely to fit having regard to the information on culpability and harm provided. In other areas there still seems to be a tendency to rely on rote learned general answers which are then reproduced without consideration of whether all the material is relevant and how the material should be tailored to have regard to the circumstances of the scenario. This results in answers which lack application. Examples of this are provided in the discussion of the individual questions. Candidates generally seem not to fully grasp the distinction between the admissibility of evidence and factors relating to the weight to be attached to admissible evidence. Page 1 of 13 CANDIDATE PERFORMANCE FOR EACH QUESTION Question 1(a) This question was generally well answered, and most candidates secured the majority of the marks. Since the scenario makes it clear that the client is in employment it was not appropriate to discuss passporting benefits (an example of rote learned answers) and a significant number of candidates failed to appreciate that, as robbery is indictable only, the merits test for a representation order is automatically satisfied. (b) Nearly all candidates were able to give a reasonable account of the VIPER procedure. The need to deal with the distinctive feature of the monobrow was acknowledged, but the code of practice clearly suggests that where the distinguishing feature is, as here, mentioned in the witness descriptions, it should be added to all images rather than being deleted from the suspect’s. A few candidates still suggested a traditional live parade as an alternative, without demonstrating that they understood that this would also require the client’s consent. (c) This is an area where candidates still tend to produce quite a lengthy generalised explanation of the merits and demerits of the legitimate approaches without necessarily identifying the features of the case which militate in favour of one or the other. Here, for example, the client is of previous good character, and accordingly unfamiliar with police tactics. This could be a reason to recommend a no comment interview with a prepared statement. The client has an alibi, although there is no witness who can fully support this. Nevertheless, it is a positive element which needs to be disclosed in order to avoid adverse inferences. There is also an explanation for the presence of DNA on the replica gun. The best answers used this information and focused on the two most relevant approaches, namely answering questions and providing a prepared statement. (d)(i) This question was answered surprisingly poorly. Far too many candidates, including some who correctly identified robbery as an indictable only offence earlier, failed to describe the initial hearing in the magistrates’ court for the purpose of sending the case to the Crown Court. The defendant is identified, a date is given for the first appearance before the Crown Court (the Plea and Trial Preparation Hearing) and issues relating to bail, legal aid, and reporting restrictions can be dealt with. However, the defendant will not be asked to plead and there is no discussion of the facts and issues. Far too many candidates simply describe the standard Plea before Venue and Mode of Trial hearing as though it were an either way offence. A minority irrelevantly discussed the PTPH itself. Page 2 of 13 1d(ii) There is here clearly an allegation of interference with a prosecution witness. As the client is currently on unconditional bail, this does not constitute a breach of bail conditions. While it could in principle give rise to an application for reconsideration under s 5B Bail Act 1976, as the client is due to appear in court within a very short time, it is more likely that an application will be made at that hearing. Most candidates identified that there would be an application in relation to withholding, or imposing conditions of, bail, and that the statutory ground for overriding the presumption of bail related to interference with witnesses. The detailed understanding of procedures and criteria was variable. Question 2(a) Most candidates realised that this question was primarily about disclosure. The level of detail varied considerably, with some candidates giving a clear explanation of primary and secondary disclosure, the implications of a defence statement and specific requests initially to the police and then to the court. However, the facts make it clear that the photographs have not been produced in primary or secondary disclosure. There is therefore little point in explaining what the police should have done and the relevant points are those in relation to seeking specific disclosure and identifying what issue the photographs are relevant to. Only a minority went on to consider whether there could be an application to stay the proceedings if the pictures were still not produced. (b) This question clearly invited a discussion of an application at a preliminary hearing to exclude the evidence under s 78 PACE. A surprisingly large number of candidates wrongly considered that the police had in some way breached the identification Code of Practice, whereas the facts make it clear that the witness had been shown the photographs by her son on the day they were taken, and therefore some time before the robbery. While the Code does indicate that photographs must not be shown to witnesses when there is a known and available suspect, this only relates to official police photographs. The application would therefore be based, not on police non-compliance with the Code, but on the prejudicial effect of the witness having seen photographs which contained the client. It is somewhat doubtful whether this would in itself be sufficient to render the evidence inadmissible, since there is nothing to suggest that a VIPER procedure cannot be used where the witness has or may have had dealings with the suspect on a prior occasion. Some candidates focus their answers on submissions relating to the Turnbull guidelines. However, these are primarily concerned with the reliability and weight, rather than the admissibility, of the evidence in question. Even if the identification evidence were regarded as weak, there is still supporting material in the form of DNA. A submission of no case to answer is therefore unlikely to be successful on Turnbull grounds, but maybe appropriate if the identification evidence is excluded under s 78, as, at this point, the DNA is almost certainly not sufficient by itself to prove participation in the offence, given that it was found at the client’s place of work and he has explained that he handled it there. Page 3 of 13 2(c) Virtually all candidates correctly identified that the legal and evidential burden rested on the prosecution. A significant minority then went on to discuss exceptions to this rule which were not in any way relevant as the defence are not raising any positive defences other than alibi. More candidates should have specifically identified that the issue between prosecution and defence was not whether or not a robbery had been committed but whether or not the client was one of the perpetrators. It is at this point that the identification issue should have been discussed, with full consideration of the Turnbull guidelines and application to the circumstances. Again, there is now significant supporting evidence, but the defence can make submissions as to the likelihood of the witness making a false positive identification based on having seen the photographs earlier as well as the usual issues relating to the circumstances, in particular that the offender’s face was partly covered. Issues relating to the way in which the evidence of the co-accused would be dealt with were generally poorly handled and some candidates barely referred to what is extremely strong evidence for the prosecution. The scenario makes it clear that the co-accused is expected to plead guilty. At that point he will become a competent and compellable witness for the prosecution and there is no reason to suggest that they will not call him. While it is true that his confession is, under normal circumstances, evidence only against him, this is of no particular significance since his evidence in court will clearly implicate the client. No information is given about whether the co-accused is bad character. This should be explored and, if appropriate an application made to admit this as relevant to an issue between the parties. A record including dishonesty would clearly be relevant to credibility and therefore whether he is telling the truth about the client’s involvement.
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