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Unit 11 - Criminal Litigation

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Unit 11 - Criminal Litigation LEVEL 3 - UNIT 11 - CRIMINAL LITIGATION SUGGESTED ANSWERS – JANUARY 2010 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 2010 examinations. 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. ILEX is currently working with the Level 3 Chief Examiners to standardise the format and content of suggested answers and welcomes feedback from students and tutors with regard to the ‘helpfulness’ of these 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. The aim of this report is to provide general guidance on what the questions required. The main points and issues for each question are set out below. The report is no intended to cover all possible points. Question 1 (a) Voluntary attendance at the police station. If the police wish to question a volunteer for the purpose of obtaining evidence, the volunteer must: • Be cautioned before replying; • Be told he is not under arrest; • That he is free to leave if he wishes; and • That he may obtain free independent legal advice, which was not the case in this instance • Code C – re: independent legal advice appears to have been breached. (b) Action with regard to admissibility of confession. In this instance it would be appropriate to make a submission under section 78 PACE 1984 for breach of code C as Liam was denied access to legal advice. The submission would be made prior to commencement of trial. As Liam’s interview was conducted without legal representation, against his wish, then his confession maybe ruled inadmissible. There is a further argument that while there is not limit to the number of officers in the interview room, it could be argued that six is excessive and therefore there is a further argument under section 78 that the interview is Page 1 of 4 oppressive. Some students raised the fact that Liam maybe unfit to interview and credit was given for this argument. Credit was also given for reference and application of s76 PACE. Students were also credited for reference to Article 6 of ECHR. (c) Legal funding scheme – duty solicitor scheme at court. The appropriate scheme in this instance to claim Amira’s fees will be the Duty Solicitor Scheme at Court, as she was the designated Duty Solicitor at court. Liam qualified since he was in custody and/or applying for bail. Further, he had not seen a solicitor previously and/or does not have own solicitor. There is no merits test applicable to this scheme. Question 2 Contents of the plea of mitigation could include: • The offence was committed against a man who had been having an affair with his wife. Therefore there was an element of ‘provocation’. Furthermore, the offence was undertaken under the influence of alcohol. • The offence was not premeditated and was an impulsive act carried out in anger. • The defendant voluntarily attended police station to admit his guilty and fully co-operated with the police. • The Defendant is remorseful for his actions. • The conditional discharge for which he will be re-sentenced relates to offence of stealing food while suffering financial hardship during a period of unemployment. • The defendant has served some time in custody while bail refused by police. • The defendant is due to start a new job – therefore financial penalty maybe an appropriate sentence. Candidates were credited for any appropriate sentence. • The offences are different. Question 3 (a) Presumption in favour of bail in relation to murder. Under S4 Bail Act 1976 staring point for all cases that there is a prima facie right to bail. (b) Grounds for denying bail. The court can refuse to grant bail if there are substantial grounds for believing that the defendant would, if released on bail: • fail to surrender to custody; or • commit an offence while on bail; or • interfere with a witness or obstruct the course of justice • Para 2 Part 1 Sch 1 BA 1976 (above). • Where the offence charged is indictable and the defendant was already on bail at the time of the current offence. Page 2 of 4 • Having been granted bail the defendant fails to surrender or breaches bail conditions during the proceedings a remand in custody is necessary to protect the accused. (c) Two factors the court will take into account in this case: • The nature and seriousness of the offence, which in this case is murder. Candidates were expected to write about any other factor and apply it to the case study e.g. • The strength of the prosecution case – the reaction of the defendant when notified of the death and the fact that it occurred during her lunch break, which was at the time of the fire. The defendant was in the proximity of the fire and no witnesses appear to have come forward to substantiate her whereabouts. (d) Sequence of events – trial on indictment. • The clerk reads the indictment. • The defendant enters a not guilty plea. • Twelve jurors are sworn in (limited rights to object). • The prosecuting counsel makes an opening speech outlining the facts of the case. • The prosecution calls its witnesses – they are examined in chief by the prosecution, cross examined by the defence and re-examined by the prosecution (uncontested statements are read out). • After the prosecution has presented its case a submission of ‘no case to answer’ can be made by the defence and responded to by the prosecution. • If no submission is made, or the submission fails, the defence present their case and can make an opening speech if they call more than one witness. • Defence witnesses are called and give evidence in chief, cross examined by the prosecution and then re-examined by the defence. • The prosecution make a closing speech followed by the defence counsel. (e) Role of jury in a murder trial: The jury consider the verdict whereas the judge hears applications on admissibility of evidence and rules on them in the absence of the jury, sums up and advises in the burden of proof and passes sentence. The judge also can make a ruling that there is not case to answer. Question 4 (a) Mode of trial procedure: • Used material to be disclosed by the prosecution and the clerk checks that the prosecution have complied with by this - Part 21 Criminal Procedure Rules 2005. • The clerk informs the defendant that he will be asked to indicate a guilty or not guilty plea. If the defendant proceeds with a guilty plea then the court will proceed to sentence and he is warned that the Magistrates can still commit the case for sentence to the Crown Court if Page 3 of 4 they believe that their sentencing powers are insufficient - S3 Powers of Criminal Courts Sentencing Act 2000 (PCC(S)A 2000) • The charge is read and the defendant indicates a not guilty plea – the procedure is governed by ss18 – 20 MCA 10980 • The prosecution followed by the defence advocates are given the opportunity to make representations on the most appropriate venue for trial. • The Magistrates retire and consider the National Mode of Trial Guidelines and thereafter return to deliver their decision. • If the Magistrates accept jurisdiction the defendant is given the choice of venue. • If the Magistrates decline jurisdiction or the defendant elects Crown Court trial then the case is adjourned for a committal hearing. (b) Factors in favour of a summary trial could include: • The Magistrates powers of sentence, if the defendant is found guilty, are much more limited compared to the Crown Court. • Delay – the case is likely to be set for trial quicker in the Magistrates’ court. • Formality- the Magistrates’ Court is more informal or less stressful than the Crown Court. • Cost – costs are cheaper than the Crown Court. • Defence case – no obligation to file a defence statement in a summary trial so you are not alerting the prosecution to any line of defence. • Advocate – more likely to be the solicitor that has conduct of your case so continuity is ensured. • Publicity – if case heard in the magistrates Court there is less likelihood of publicity. (c) The obligations on the Crown Prosecution Service are governed by the Criminal Procedure and Investigations Act 1996 – part 21. There is only a limited obligation to disclose material prior to MOT hearing. The CPS is required to disclose ‘used’ material that CPS intend to rely on - there is requirement to disclose unused material at this stage. Page 4 of 4 .
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